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"Science," the Greek word for knowledge, when appended to the word "political," creates what seems like an oxymoron. For who could claim to know politics? More complicated than any game, most people who play it become addicts and die without understanding what they were addicted to. The rest of us suffer under their malpractice as our "leaders." A truer case of the blind leading the blind could not be found. Plumb the depths of confusion here.

Meanwhile, the families of the Flight 103 victims had won their suit against Pan Am.

On 11 July 1992, a New York jury found that the airline and two of its subsidiary companies, Pan American World Services and Alert Management, Inc., had been guilty of 'wilful misconduct' in failing to observe required security procedures at Frankfurt airport, thereby permitting the terrorists to smuggle a bomb aboard.

In Britain, the judgment was hailed by Peter Watson, lawyer for the British families, as 'a warning to the airline industry that, if their security is as lax, poor and haphazard as Pan Am's was on this occasion, then they face fearful damages. That is the only way a court can bring this home to an airline.'

As there is little doubt that Pan Am's security arrangements at Frankfurt on 21 December 1988, were as 'lax, poor and haphazard' as Watson maintained, his strictures were justified. But there remained a serious doubt that Pan Am's security arrangements were even relevant to the fate of Flight 103.

The plaintiffs' suit had rested squarely on the government's case against the Libyans. If the Libyans were guilty as charged, then so was Pan Am. If they were not, then the plaintiffs' suit was without foundation.

Lee Kreindler, lead counsel for the families, had been required to prove that the bomb, disguised as a Toshiba radio-cassette player, was packed in a suitcase and shipped from Malta to Frankfurt, where it slipped through Pan Am's security and was loaded aboard Flight 103. That could only have happened, he argued, because Pan Am had failed to observe the security rules which required unaccompanied baggage to be hand-searched.

In effect, Kreindler had been required to test part of the case against the Libyans before he could win the suit. If he failed to convince the jury that the bomb had originated in Malta, then Pan Am was off the hook. With no proof of how or where the bomb had been introduced into the baggage-handling system, how could anyone say the airline should have prevented the disaster?

For the defence, Pan Am's trial counsel, Clinton Coddington, admitted that as far as security at Frankfurt was concerned, 'there is no question we made slip-ups and goofs, but,' he insisted, 'they did not cause the tragedy.' Although he argued that the airline's security system had been approved by the FAA, the crux of his strategy was to show 'that the bomb could not have been from Malta'.

The task proved beyond him. Barred from suggesting that the bag had gone aboard at Frankfurt in a way that Pan Am could not have been expected to prevent and even from calling expert witnesses to challenge the validity of the plaintiffs' Libyan theory, he failed to persuade the jurors -- but only just. After a trial lasting 11 weeks, they twice reported themselves deadlocked and twice Chief Judge Platt had to send them back to resume their discussions. In the end, it took the jury three days to arrive at a finding of wilful misconduct, which Pan Am immediately announced it would appeal.

'Much of what we do know with certainty about Lockerbie,' said Thomas G. Plaskett, the airline's former chairman, 'was not shared with this jury, and so today's verdict, much like the whole affair, remains clouded by uncertainty. We shall endeavour through the appeals process to shed some light on this uncertainty.'

This was not what the US government wished to hear. For one thing, it meant that the appeals court would review the Libyan theory, and if, as seemed likely, the judgment against Pan Am was reversed, the whole can of worms would be tipped over in full public view.

If the appeals court ordered a new trial, perhaps on the grounds that evidence for the plaintiffs had been improperly admitted while evidence for the defence had been improperly excluded, then Pan Am's counsel would be free to attack the plaintiffs' case with testimony they had not been allowed to present in the first trial -- and it seemed unlikely that the Libyan theory could stand up to a battering by expert witnesses.

If Pan Am eventually succeeded in defending the liability suit, therefore, the government's case against Libya would be in shreds and its five-year cover-up left plain for all to see.

With Plaskett's announcement that Pan Am and its insurers intended to appeal, Washington went after James Shaughnessy with a vindictiveness without parallel in legal history. Whether as a last-ditch, all-out attempt to shake him off or simply to punish him for daring to challenge the official version of events, the Justice Department filed its long-threatened motion for punitive sanctions against him and his law firm in the amount of $6 million.

Referring to the civil action just ended, the preamble left the court in no doubt about the government's furious embarrassment:

This litigation arose from the wilful misconduct of Pan American World Airways (Pan Am) which allowed a terrorist bomb to be placed aboard its Flight 103 which was destroyed over Lockerbie, Scotland, on December 21, 1988. Subsequently, this court, the families of the victims and the United States Government have been subjected to a calculated and callous litigation strategy intended to avoid liability for the carrier's misconduct.

This strategy, initiated in mid-1989, has been followed to this very day by Pan Am's counsel and their client. Until the United States was finally dismissed in April 1992 [a reference to the dropping of the third-party suit on the eve of the civil action] these litigants, relying upon and wilfully implementing this strategy, successfully generated inflammatory but false allegations in the media and before this court which were intended, and did, in fact, divert attention from the legitimate focus of this litigation, Pan Am's own wilful misconduct.

The resulting waste of time, effort and financial resources and, indeed, attempted misdirection of the criminal investigation itself, more than warrant the substantial sanctions sought by this motion.

More specifically, the government sought to punish Shaughnessy for:

(1) Pan Am's initial subpoenas to the intelligence, military and law enforcement agencies which were based upon the false allegations in the Aviv Report;

(2) the filing of the third-party complaint which was based upon those same false allegations and the equally false allegations directed against the Drug Enforcement Administration (DEA);

(3) the opposition to the motion of the United States to dismiss the third-party complaint which was based upon further false representations that the Pan Am litigants possessed a basis for the claims in the third-party complaint;

(4) the post-filing discovery requests directed at the intelligence, military and law-enforcement agencies for classified and privileged information which is completely protected by statute and under existing precedent, as to which no legitimate argument for change could reasonably be made;

(5) the submission of Freedom of Information Act (FOIA) requests to various agencies which were identical to Pan Am's civil discovery requests, and

(6) the continuous opposition to all reasonable attempts to terminate the litigation activity against the United States which was based upon the false allegations which were repeatedly reasserted without any evidence to support them.

Taken at face value, the motion seemed to argue that nobody, not even in his own defence in a court of law, was entitled to question the government's good faith, its conduct, the truth of its assertions or its judgment in deciding matters of fact. It also seemed to insist that its files were sacrosanct, that they were not open to inspection even in matters as grave as determining who was responsible for the mass murder of 270 innocent people. Even the use of FOIA requests in this context was deemed an underhanded and therefore sanctionable act.

But the motion was not to be taken lightly. Unless the government's arguments were met and answered to the satisfaction of the court, Shaughnessy and his law firm faced bankruptcy and worse. Disciplinary proceedings, perhaps even disbarment and criminal charges, might follow if the government's position were upheld. The choice, therefore, was either to seek an accommodation with the Justice Department, which, as a minimum, would have meant abandoning the case, or to fight.

On 25 September 1992, Shaughnessy met the government head-on with a 73-page affidavit reviewing the entire sweep of his investigation from the moment it began ten days after the Flight 103 disaster.

On the 'false allegations in the Aviv report', Shaughnessy described what happened when he discussed its conclusions with his colleagues.

'Plaintiffs' case depended on their contention that the bomb had penetrated Pan Am's security,' he wrote. 'Mr. Aviv's report indicated that the bomb had circumvented Pan Am's security. Thus, in order to properly defend our clients, we decided that we should serve subpoenas on a number of Federal agencies in an effort to determine whether the government had any documentation which would either confirm or dispute what Mr. Aviv had reported.'

Partial corroboration of Aviv's thesis 'that a Turkish Pan Am baggage handler, following his usual practice with respect to narcotics shipments, switched the suitcase containing the bomb for an "innocent" suitcase had been provided by two conversations between Michael Jones of Pan Am and Phillip Connelly of H.M. Customs and Excise in London. But when the subpoenas were served, 'it was obvious that there were very few sources of evidence ...other than the governments allegedly involved and the terrorists themselves. The best, if not the only source of information that was accessible and was within the subpoena power of the United States courts was the government.'

After tracing the course of the government's stubborn refusal to disclose what it had on file, Shaughnessy reminded the court that his discovery subpoenas had finally been quashed on the strength of a briefing 'on undisclosed matters on unspecified dates by unidentified agents of the government'.

Whatever Chief Judge Platt was told, he later expressed the opinion that 'the key liability issue in this litigation was whether defendants [Pan Am] had met the applicable standard of care with respect to the security applied to interline baggage in Frankfurt.' (Given the determination with which the government had resisted producing the relevant documents, it is hardly likely that its agents would have told the court anything that pointed to a different conclusion.)

Shaughnessy then turned to the government's almost total lack of interest in the results of the polygraph tests he had arranged for the three Pan Am baggage handlers on duty in Frankfurt on the day of the disaster.

In the opinion of the examiner, James Keefe, who had conducted polygraph examinations for over 30 years for the US Army's Criminal Investigations Division, Tiling Kuzcu 'did not tell the truth when he stated that he did not know who switched the suitcases on Flight 103, and further when he stated that he did not switch those suitcases himself. Further, it was the opinion of the examiner that Tuzcu did not tell the truth when he stated that he was not told by Roland O'Neill, loadmaster, to switch the suitcases. Further, it was the opinion of the examiner that Tuzcu had a suspicion that the suitcase placed on Flight 103 contained a bomb.' (The significance of these results, like the significance of the Aviv report, had been largely obscured by the uproar that followed their leakage to the press. As with the report, the polygraph results were invariably described after that as 'discredited'.)

After running through a long list of sources tracked down after Aviv resigned as Pan Am's investigator in June 1990, Shaughnessy described his first meeting in London with Lester Coleman, who had gone there to meet Pierre Salinger of ABC News. Both NBC and ABC, he said, had told Gregory W. Buhler, deputy general counsel of Pan Am, who was also in London, that they 'had evidence that a DEA undercover operation was involved in the crash of Flight 103'. They had also assured Buhler 'that they had obtained their evidence from sources within the United States government and that they were merely using Mr. Coleman to confirm certain details'.

At subsequent meetings in London, Coleman gave Shaughnessy 'detailed information concerning the DIA, the DEA and particularly the Cyprus office of the DEA. This information included code names of operations, file numbers of operations, names of confidential informants and names of subsources. Mr. Coleman also provided me with copies of a number of documents, including an internal DEA memorandum and a passport of a man he said was a DEA confidential informant.' (This was the passport of Syrian George, for whom Coleman had organized a student visa, and who was as familiar with the DEA's couriers and its programme of controlled heroin deliveries from the Bekaa as Coleman himself. Syrian George was last heard of in the Seattle area, to which Micheal Hurley had been assigned after his recall from Cyprus.)

'Finally,' said Shaughnessy, 'he gave me a photograph which he said he had obtained from a contact in Athens which he said was a photograph of David Lovejoy who, at the time the photograph was taken in Beirut in 1985, was using the name Michael Franks.'

Besides newspaper reports about the interception of Lovejoy's calls to the Iranian Embassy in Beirut, Shaughnessy said that he 'had also been advised separately by four investigative journalists' that they had 'evidence' of these intercepts, one having claimed to have actually heard the tapes. 'Finally, I was told that Mr. Lovejoy used a number of aliases, including Michael Franks.'

Turning next to the government's charge that there was no basis for the third-party complaint, Shaughnessy reminded the court that the government had been advised in advance of his intentions to file suit in order to protect the rights of Pan Am and their insurers before the two-year time period ran out. Plaintiffs in the civil suit against Pan Am had done the same thing, for the same reason.

However [he went on], the government claims that it was 'clear' even in December 1990 that there was nothing to defendants' claims. The government bases this claim on the following:

(i) the conclusions of the President's Commission, which was not tasked to investigate, and thus never addressed, the issue of government complicity, except in the broadest terms;

(ii) the determinations of Sheriff Principal Mowat at the [Scottish] Fatal Accident Inquiry, a proceeding which never investigated any facts in Frankfurt and never heard any evidence of, or addressed the issue of, government complicity; and those determinations were not issued until months after the filing of the third-party complaint;

(iii) a press release issued by the Department of Justice supposedly summarizing the results of an internal investigation following the NBC and ABC news reports which revealed that the FBI's investigation was continuing;

(iv) the declarations of government employees in response to government counsel's 'distillation' of Mr. Aviv's 'accusations' ...;

(v) Magistrate Judge Ross report ... and

(vi) the testimony of Scottish Detective Constable Derrick Henderson at the Fatal Accident Inquiry [who] had no personal knowledge of any facts. ..

'I believed at the time we filed the third-party complaint, and still believe,' said Shaughnessy, 'that none of the sources cited by the government demonstrates that the allegations of the third-party complaint were not well grounded in fact.'

This brought him to the third charge, which was that he had opposed the government's motion to dismiss the third-party suit with 'further false representations', in particular the affidavit sworn out by Lester Coleman in Brussels on 17 April 1991. In reply, the government had filed declarations from Lt-Col. Terry Bathen of the DIA and Micheal Hurley of the DEA, and 'significantly', Shaughnessy went on, 'Colonel Bathen admitted that Mr. Coleman had worked for the DIA and Mr. Hurley admitted that Mr. Coleman had worked in Cyprus for the DEA.

'Of even more significance, while Colonel Bathen and Mr. Hurley went to some length to discredit Mr. Coleman, neither of them, particularly Mr. Hurley, attempted to address, much less rebut, the substantive statements made by Mr. Coleman. This failure to deny the substance of Mr. Coleman's statements sharpened our suspicions.' (As a footnote, he added: 'In light of certain allegations that have been made in the media, let me address one important point. Mr. Coleman was never paid any amount except for his expenses in meeting first with me and then with [my colleague] Mr. Prugh.')

Shaughnessy next described his attempts to secure depositions from Dalkamoni and Ghadanfar in Frankfurt, from Pinsdorf and Mayer of the BKA, from Talb and Moghrabi in Sweden, from the two principals of the Swiss firm that manufactured the batch of timers sold to the Libyans, and, in London, from Phillip Connelly, Dr. Thomas Hayes, and David Leppard, to whom Dr. Hayes had expressed the view that the bomb had most likely been triggered by a combined barometric switch and timer, rather than the simple timer supposedly employed under the Libyan theory. As the government had elected to have an attorney present on all these occasions, it was now trying to recover the costs it had incurred as a result.

Summing up, he declared that

"what the government calls a 'callous litigation strategy intended to avoid liability' is what others call defending against unproven charges ... The initial subpoenas and the subsequent two discovery requests served upon the government, not to mention this court's July 19, 1991 order compelling the government to make discovery, were efforts to obtain information and evidence in this litigation. The third-party complaint was the result of information derived from our investigation ...

"The government has fought strenuously and successfully for three years to prevent any discovery of it. Its success is the reason that defendants' third-party claims were dismissed, as a result of which those claims have never been adjudicated. Now, the government seeks millions of dollars of sanctions to punish and bankrupt my firm and me for having had the temerity not only to assert claims against the government but also for even seeking discovery from the government ...

"The government condemns as sanctionable any view of the facts that differs from its own. In effect, what the government condemns is defendants' refusal to blindly adopt its version of the facts despite the government's refusal to produce the evidence from which defendants could have determined whether the government's version of the facts was correct ...

"The government expects this blind trust even though we had information from multiple sources that conflicted with the government's sweeping assertions and that suggested the government was responsible for the failure to prevent the bombing. I note that the government was never able to persuade the court, on the basis of [its] public statements and other facts that were publicly available, that the litigation against the government should cease ...

"Given the information in my possession, I believed that, in the exercise of my duties to my clients, I could not properly advise them simply to trust the government, to shut down discovery against the government, and to abandon the third-party claims without convincing proof that the government's self-serving statements of non-involvement and lack of knowledge were well-founded and our own information to the contrary was erroneous ..."

Not until the end of his long affidavit did Shaughnessy at last give vent to his anger at the attack on his character and professional conduct.

"In closing, I want to say that I am outraged that the government ... has accused me of deliberately making false allegations. This charge is wholly untrue and plainly unfair. The opening pages of government's memorandum graphically demonstrate that a major purpose of the motion is to smear me. The remainder of the memorandum, which ostensibly is offered to prove up the extraordinary allegations in the beginning, is based largely on innuendo and other unsworn speculation of government counsel; it misstates many facts, as I have shown in this affidavit, and it distorts legal precedents to such a degree as to make the memorandum unworthy of the Department of Justice."

Chief Judge Platt was inclined to agree.

In delivering a written judgment on 27 October 1992, he found that

"... succinctly stated, this is an extraordinary motion in what has proved to be an extraordinary case.

"In the first place ... the government's motion is unquestionably premature [and] quite apart from the prematurity of the motion, there are substantial questions whether any sanctions may properly be imposed ... for any of the alleged 'misconduct' on the part of Pan Am and/or its counsel ...

"Viewing the case at bar as a whole ... this court may not say that there has been a clear showing of bad faith ... nor may it say that the persons sought to be sanctioned ... have served any papers with an improper purpose or without a reasonable belief that the paper was well grounded in fact ...

"Parties and their attorneys, including those involved here, are entitled to base their complaints and their requests for discovery on statements of witnesses, reports of their investigators and hearsay reports and statements of others until such time, if ever, as they are satisfied that the statements and other evidence are not competent or are otherwise untrustworthy.

"Thus, in the case at bar, the defendants and their attorneys were during most of the discovery period entitled to pursue their own discovery requests on the basis of the reports and testimony of Messrs. Juval Aviv and Lester Coleman and also to formulate and serve their third-party action against the United States of America in reliance on these two witnesses and the other related information which they had obtained from other sources.

"By the admission of its own lawyers and other agents, the government has in its files substantial evidence which it claims proves the statements of Messrs. Aviv and Coleman to be false, but in order to protect its ongoing criminal investigations and cases, the government refused during all of the pre-trial period in question herein to disclose such evidence.

"It ill behooves the government now to claim that defendants and their lawyers knew or should have known that the Aviv Report and Coleman affidavit were false when they have concededly withheld information from them which prove that their report and affidavit were in fact false ...

"Nor is there truth to the government's assertion that defendants or that their lawyers fully conceded 'that there was no basis' for the third-party complaint or the allegations which were the purported basis for the discovery requests ... All that the defendants did concede at the outset of the trial, in this case, was that they had been unable to discover sufficient corroboration for the Aviv Report and the Coleman affidavit to withstand the government's motion for summary judgment dismissing their third-party complaint, particularly since the government was unwilling to disclose evidence in its own possession.

"On the contrary, if anything, defense counsel James M. Shaughnessy should be commended for the concession which he did make at the start of the trial and for not attempting to espouse directly or indirectly during the trial the uncorroborated versions put forth by Messrs. Aviv and Coleman."

The government's motion for punitive sanctions was denied.

It was the last best shot of the Justice Department under President (and former CIA director) George Bush, who had gone to the White House a month after Flight 103 went down.

The stage was now set for the final act of the drama, in which a Democratic Administration will have to decide 'in the national interest' whether to open the Flight 103 files or, if its predecessor has not already done so, to shred them.

Sweden's idea of a refugee camp would not look out of place in any prosperous, middle-class suburb. Nor does its scale of support for refugees fall short of the minimum standard of life it underwrites for its own citizens. Indeed, the generosity with which the Swedish government treats the displaced and persecuted, and the numbers given asylum in relation to the country's population and economy, speak of a genuinely civilized society that, without setting out to do so, serves as both an example and a reproach to the rest of the world.

The Colemans' 'camp' was a modern apartment complex in a landscaped setting on the edge of town, with its own medical centre and children's nursery. While their claims for asylum are considered, newcomers are temporarily housed there in circumstances that, even by American standards, are little short of luxurious. Accustomed to a gulf between theory and practice in most Western professions of virtue, Coleman was astonished.

"They put us up in a three-bedroom apartment with brand-new appliances, including a TV and a computerized refrigerator, and completely furnished, down to the bedsheets. It was summer, so we bought a used bicycle to go to the market, and every other Thursday, we'd stand in line outside the office to receive our stipend, which amounted to about £700 a month.

"It was amazing. People arrive, exhausted and demoralized, expecting workhouse charity at best, and it's a shock, not to be greeted as a problem, as a bureaucratic nuisance. The Swedes never toot their horn about it, but they really care. They do all this for genuinely humane reasons. Outwardly, they may not seem a very emotional people, but they express their feelings in practical ways. They take everybody very slowly -- you have to prove yourself. But once they accept you as a friend, you're a friend for life."

Even so, the Colemans were in exile. Despite the hospitality and protection of their hosts, there were endless adjustments to make in the business of day-to-day living, to differences in outlook, culture and language, and, not least for a Southerner like Coleman and his Mediterranean wife, to a change of climate as drastic as their change of status. Above all, there was an underlying sense of impermanence that nothing could dispel. The shabby pretext for issuing a fugitive warrant was proof enough that the octopus was still out there, waiting.

Having agreed to offer the Colemans sanctuary while their application for permanent asylum was considered, the Swedish government was clearly in no hurry to arrive at a decision. 'Refugees can wait for years, unable to work or live a normal life, the uncertainty gnawing away at you day by day,' says Coleman. 'They call it "living in splendid misery".

'After a year in the camp, when it became clear to everybody that the passport charge was a phony, the police moved us into a modern apartment in town for our own protection. The rent and utilities were paid for, and they gave us a grant of 50,000 kronor to furnish it. Not a loan -- grant. At that time, before the recession really hit, we also got 600 hours of free language tuition, bus tours all over the place, picnics, computer classes, and access to all the social services open to Swedish citizens. And that's remarkable, when you remember the cost was borne by a country of only eight million people with all kinds of economic problems of their own. But even so, we were still in limbo, still awaiting a decision.'

Meanwhile, the FBI had tried to get at him through his mother. On 26 March 1992, Special Agent Robert Sleigh (pronounced 'sly') of the FBI's CI-3 counter-intelligence section stopped by her house in Birmingham, Alabama, for a chat. After Syrian George had been debriefed by the DIA, Coleman had turned him over to Sleigh so that the FBI could determine his eligibility for a resident's visa.

Introducing himself politely, Sleigh proceeded to ask Margie Coleman a series of questions about her son.

Did she know where he was?

'Me?' she said. 'You're the FBI. Don't you know where he is?'

Well, they thought he was in Sweden. Did she know if he planned to come back?

'I don't know,' she said. 'Is there any reason why he shouldn't?'

Well, that was up to him. Did her son love America?

'A whole lot more than America loves him,' she said. 'After serving his country the way he has, he deserves better than this from you people.'

Well, would he renounce his American citizenship?

'Does he have a choice?' she asked. 'You better ask him yourself.'

Well, they certainly would like to talk this over with him. Could she give them his number?

'I don't think he wants to talk to you,' she said. 'Goodbye.'

Having shown Agent Sleigh the door, she went around to a neighbour's house and telephoned Coleman from there, just in case her line was tapped.

After thinking things over, Coleman informed the Swedish police, who advised him to report the incident in writing to the attorney who was helping him with his affairs.

"It is quite interesting [he wrote], that Agent Sleigh should appear at my mother's home within weeks after you and I were told by Swedish Immigration that the evidence I have presented in my claim for political asylum may be verified by the Swedish Foreign Office. ..

"I must conclude that the Swedish government is making inquiries in the USA about me, and this has alerted the FBI CI-3, whose job is to monitor foreign governments in the USA.

"I am sure the Swedish Foreign Office is aware that their secure cable and voice traffic is being monitored by the FBI. The bottom line is that the FBI now believes that I am in Sweden and is asking some very political questions about my patriotism."

Coleman's next disturbing call was from Joseph L. Boohaker, the Lebanese-American attorney who had arranged bail after his arrest on the passport charge. Somebody had contacted Boohaker to ask about him, and the circumstances were sinister enough for Boohaker to write this report on the incident while it was still fresh in his memory:

"On Thursday, 11 June 1992, at approximately 3:00 P.M. (CDT), I received an anonymous phone call from an individual who identified himself only as a person calling from Washington, D.C. The individual had a message for me to convey to my 'friend living in the North country'. The message, roughly, was as follows:

"'Mr. Boohaker, tell your friend living in the North country that Monzer al-Kassar was arrested today in Barbados and that among his belongings was found a picture of your friend. Tell your friend to take extra security precautions.'

"When I asked for the person's identity, he refused to give it. When I asked him, 'Should my friend from the North country ask where I got the information, what should I tell him?'

"The anonymous caller said, 'Just tell him that it comes from a reliable source, and he will figure out who I am.' He continued, 'Also contact Sly [sic] and Strike 6 in Birmingham, and give him the same message.'

"I asked, 'Who is Sly and Strike 6? Is it FBI?'

"He replied, 'I can't tell you. You will have to find out for yourself.'

"I contacted Mr. Coleman, who gave me the identity of Sly. I contacted Sly and we met in my office on Friday, 12 June 1992. At that time, I gave Mr. Bob Sly the same message related hereinabove. I also related to Mr. Sly that my wife had indicated Thursday evening that the same anonymous caller had called my home looking for me and that his call was directed to my office.

"Mr. Sly was very gracious. He explained that the FBI was interested in my friend only as a fugitive from US justice. He also indicated that he wished to talk to my friend regarding Pan Am 103.

"I provided Mr. Sly with a copy of the Time magazine article written by Mr. Rowan that featured an interview with my friend and that also referenced Mr. al-Kassar. I told Mr. Sly that the article would tie together the entire matter. Mr. Sly asked for a copy of the article and I provided him with mine.

"I expressed concern that an anonymous caller would call my home and asked Sly if he could tell me anything about what was going on. He did not know. However, he took a description of the caller from me and said that the telephone company may be able to trace the origin of the call. I gave him permission to find out. He called later and said that the phone company could not trace the call to the individual number that had placed it, but he did say that if I got another such call to notify him."

When he heard what had happened, Coleman asked Boohaker to do the same thing, because there was not enough there for him to 'figure out' who the 'reliable source' really was.

'Boohaker also told me that Sleigh wanted to talk about Flight 103,' he recalls, 'and did I want to talk to him? No, I said. "Well, he seems friendly enough," said Boohaker. "And he says he remembers you as being rather a nice fellow."

"'I'm sure he does," I said. "If he calls again, tell him I'm thinking about it."'

It was the first time that anybody, British or American, concerned with the official investigation had shown any interest in talking to him about the Flight 103 disaster. After thinking about it for almost a month, curiosity got the better of him.

"I decided, well, what the hell ... I had one of those USA direct number directories in my wallet, and one day I placed a call from here to the USA direct number in Austria and called Sleigh collect. So when the operator got on the line to the FBI, she offered a call from Mr. Coleman in Austria.

"'Well, hi,' he says. 'How'ya doing? Where are you? What's going on?'

"'You tell me,' I said. I reminded him of the Syrian George episode and asked him if he'd realized I was working for the DIA at the time.

"'Well, no,' he says, like it was big news. 'No, I didn't know that. But that's not what I want to talk to you about. I want to talk about the passport charge and this Flight 103 business.'

"'Left it a bit late, haven't you?' I said. 'I'll call you back in five minutes.'

"So I hung up and called him again, this time through the Swedish direct number operator.

''I can call you from Bangladesh next,' I said. 'In fact, we can play this game all day if you like.'

"'No, come on,' he says. 'We know where you are. Let's talk about Flight 103. Let's see if we can't figure out some way to clear up this mess.'

"'Sure,' I said. 'I'll talk about it. You get that US attorney up in Chicago to drop his phony charge against me and I'll talk all you want. But I guarantee you, he won't do it.'

"'Well, it's not as easy as that,' he says. 'You know how it works. He's going to be looking for some kind of a deal here.'

"'I already know what kind of a deal he's looking for. He wants a deal to stop me talking about Flight 103. Otherwise you guys are going to be tied up in hearings from now until Doomsday.'

"'And what about you?' he says. 'You got a wife and kids. Are you being fair on them? Unless you cut some kind of a deal, you're going to be on the run for the rest of your lives. You can't just walk away from this, you know. They won't let you.'

"'Then you better come and get me,' I said. 'If you know where I am, you can have me extradited. We'll have a public hearing in a neutral court, and talk about all the juicy little details, and we'll see what an impartial judge thinks about it.'

"'Don't kid yourself, Les,' he says. 'This is the United States government you're talking about, and that you can't beat. Nobody can. If they want you bad enough, they're going to get you -- we both know that. So why don't you make your peace? Now. While you still got the chance.'

"'First drop the charge,' I said. 'Then pull the warrant. After that we can talk.'

"And I guess that must have sounded pretty final because he just sighed and said, 'Okay. I'll run it up the flagpole. If anything comes back, we'll contact your attorney in Chicago.'

"And that was it. I never heard from my attorney in Chicago."

Coleman knew in his bones that Sleigh was right. They would never leave him alone, although the chances that the FBI would resort to direct methods of the Fawaz Younis type seemed remote. It was one thing to snatch somebody in international waters, from Mexico or from a Central American banana republic and quite another to operate on Swedish soil. Besides being logistically difficult, the diplomatic fallout would be out of all proportion to the likely gain. But if force was ruled out, and probably extradition, there was still plenty of pressure that Washington could exert on the Swedish government to have him deported as an undesirable.

Trying hard to resist the claims of paranoia, and equally to avoid displeasing his hosts, Coleman signed up for his story to be told in a book.

There was no other way he could think of to defend himself against the octopus, against that ruthlessly powerful, self-protective oligarchy of senior intelligence, military and law-enforcement bureaucrats who were convinced they knew best, regardless of what the politicians had to say, and who cynically manipulated the machinery of government to cover their tracks.

As it lived away from the light and worked best in secret, Coleman felt he might be safer out in the open.

Stranded in Sweden, he also needed the money. If he restored his reputation, there was still an outside chance that he could pick up the threads of his former career, perhaps as a writer and journalist.

In the late summer of 1992, that prospect was all but extinguished by the flat-out assault on his character by Byron and Emerson in New York magazine and the Washington Journalism Review. Coleman was a soft target, as there was no risk of his responding with a libel suit, but it had an unexpected side effect. Until then, not a word about his application for asylum had appeared in Sweden, but now the country's national afternoon newspaper iDAG picked up the reference to his whereabouts in Byron's article and traced him through the immigration authorities.

He was interviewed in the conference room of his local police station. The superintendent served coffee and biscuits. And on 19 October 1992, the paper came out with this front- page banner headline:

"USA AGENT SEEKS ASYLUM IN SWEDENSpeaks Out on Murder Threat From His Hiding Place"

Outlining how Coleman had been driven into exile, a two-page inside spread with pictures described him as 'The Man Who Knows the Truth About the Lockerbie Catastrophe'.

In a curious way, it made him feel less isolated, less like an object of no one's concern. Besides generating public awareness of his plight -- Sweden had lost two of its citizens in the Flight 103 disaster -- the iDAG interview also made it seem less likely that he would be targeted for covert action, authorized or not. To that extent, he felt more secure, particularly as the story carried the implicit endorsement of the Swedish police.

It also had the effect of dispelling his inhibitions about possibly embarrassing the Swedish government by drawing public attention to himself. Now that everybody knew he was there, the appearance of a book, with its attendant publicity, would serve only to underline his need for asylum.

And that seemed to be getting more acute. As Special Agent Sleigh had made plain, the octopus was still probing for him. From a contact in Washington, Coleman had learned that the American Embassy in London was inquiring through Interpol about his status in Sweden, to see if Swedish law provided for the possibility of deportation. Now, through another contact in the Justice Department, Coleman obtained a copy of a confidential FBI 'Investigative Summary', dated 30 March 1992, setting out the basis for the passport violation charge and the subsequent issue of a fugitive warrant.

It was the 'smoking gun' he had always hoped to find.

The charge had been rigged as a plea-bargaining counter for the government to exchange for his silence. No great care had been taken in framing it as there had never been any intention of going to trial. That would have defeated the object. But now Coleman had escaped from American jurisdiction, it was necessary to patch over some of the holes so that the charge held at least enough water to persuade the Swedish authorities that there was a real case for him to answer.

To do that, the Justice Department first had to get around the fact that Coleman had held a birth certificate in the name of Thomas Leavy since 1 March 1982, when it was given to him by the government itself. The other big obstacle it had to gloss over was that a copy of that birth certificate had already been misappropriated by the DEA, apparently to obtain a passport for one of its people in Egypt.

As no inkling of this could be revealed to Interpol or the Swedes without the frame-up becoming self-evident, there was only one thing to do, and that was to dissemble.

"This investigation was instituted on February 7, 1990 [the FBI summary began], when New London, Connecticut Resident Agency, New Haven Division, reported that they had been notified by the New London Bureau of Vital Statistics that a person identifying himself as Thomas Leavy had requested a copy of his birth certificate. Leavy's date of birth (DOB) was listed July 4, 1948, his parents were listed as John and Mary Leavy, and Thomas Leavy's address was listed as 416 County Line Road, Barrington, Illinois. A computer check of the Bureau of Vital Statistics records revealed that the real Thomas Leavy had died in New London, Connecticut, two days after his 1948 birth.

"On April 6, 1990, Richard Beckman, Chicago Passport Office ... advised the Federal Bureau of Investigation (FBI) Chicago that he had a possible passport violation. An application submitted by a Thomas Leavy on March 26, 1990, at the Arlington Heights Post Office, had a number of indicators that pointed to a violation.

"The first indication was the birth certificate for the dead baby. Other indicators were recently issued driver's license and Social Security Account numbers."

Though plausible on the surface, this raised or begged as many questions as it tried to answer.

If Coleman already had a Thomas Leavy birth certificate, issued 1 March 1982 (and still had photocopies), why would he need another one?

And why, if he did, would he apply to the New London Bureau of Vital Statistics when Connecticut's official authority for issuing birth certificates is located in the state capital of Hartford?

And why, if he did, would the New London Bureau go ahead and give Coleman, posing as Thomas Leavy, a copy of Thomas Leavy's birth certificate if a computer check revealed that he had been dead for 42 years?

And why, if it did, could Ms. Gloria Hatfield, clerk of the Records Office in New London, later find no record of the alleged death of Thomas Leavy on 6 July 1948? (When asked about his alleged birth on 4 July she explained that a birth record required the presentation of documents which the researcher did not have.)

And how did Richard Beckman in the Chicago Passport Office know that the Thomas Leavy birth certificate was for a dead baby, and thus 'the first indication' of a 'possible passport violation'?

Thus committed to a piece of pure invention (reflecting no great credit on its author's imagination), the rest of the FBI's 'Investigative Summary' was concerned to ice the cake by putting a false construction on the admitted facts of the application, but even here it stumbled from one improbability to another.

'The home and work addresses on the application,' for instance, 'came back to two separate mail drop locations ... Another indicator was that the contact person listed on the application was a relative. The contact is Lestre Colman [sic] 416 West County Line Road, Barrington Illinois ... listed as a brother-in-law.

'Investigation at Chicago revealed that the owner of one mail drop and the office manager of the second identified the photo from the passport application as Lester Knox Coleman.'

But if Lester Coleman, or anybody but an imbecile, had wished to obtain a Thomas Leavy passport for his own unauthorized use, is it likely that he would have rented two mail drops in his real name?

Or, if the passport was for his own unauthorized use, is it even remotely probable that he would have given his own name and address as a reference?

Nor did the FBI or the prosecutor anywhere suggest a motive for the application. Why would Coleman want a Thomas Leavy passport for his own unauthorized use if he already had a perfectly good one in his own name?

The only motive ever proposed was the one he had himself suggested at the time of his arrest, when he was still concealing his identity as a DIA agent. He was returning to the Middle East to research a book, he had told the FBI, and needed a new passport because his real name was known to Arab drug dealers -- but he had never seriously expected anyone to swallow that. Anybody proposing to visit an Arab country for such a purpose would normally be at pains to avoid using a Jewish-sounding name like Leavy. If Operation Shakespeare had gone ahead, the intention had been to travel on the Leavy passport only as far as Israel.

With the frame-up exposed in the FBI's own document, Coleman was not overly concerned that the Swedish authorities would take the charge at its face value or see it as grounds for deportation. But the octopus had long tentacles, and putting himself in the shoes of those who were probably now regretting that, out of deference to another agency, they had not gone for a Casolaro-type solution, Coleman approached the second anniversary of his arrival in Sweden with a growing apprehension that some new and more serious charge against him might be in the works.

If the risk of covert action had diminished, the possibility of perhaps some sort of treason-related case, properly constructed this time and backed by impeccably manufactured evidence of a kind the Swedes could not ignore, began to seem more likely. It was not a comfortable feeling for a family man, to know in his bones that Washington would prefer him to be dead.

His country had certainly not forgotten him. To mark the fourth anniversary of the Lockerbie disaster, Mike Wallace, for CBS in New York, returned to the attack by interviewing Juval Aviv in the 20 December edition of the network's flagship news programme '60 Minutes'.

CBS News had tried to inveigle Coleman into appearing also but, now wise in the ways of the octopus, he had prudently declined. Any programme produced with the help of Vincent Cannistraro, late of the CIA, Christopher Byron, fresh from setting out the government's stall in New York magazine, and Steven Emerson was hardly likely to deal objectively with anything he might have to say.

And he was right. Referring to the judgment against Pan Am in the civil liability suit a few months earlier, Wallace opened the proceedings by saying: 'It is not surprising that Pan Am and its lead insurer, US Aviation Underwriters, would appeal that verdict. What is surprising, perhaps, is that they would hire a private detective like Juval Aviv to help them avoid paying huge damage claims.'

Anyone who had not been following the case closely -- that is, all but a handful of viewers -- might have assumed from this that Pan Am and its insurers had hired Aviv after the judgment against them in an effort to avoid the consequences, that '60 Minutes' was about to report a new development. In fact, there was no connection at all between the verdict and the hiring of Juval Aviv. The juxtaposition of the two was simply to create the illusion of a news peg in order to justify a rerun of the charges already ventilated in New York magazine. Wallace was well into the programme before he acknowledged that Aviv had resigned from the case on 31 May 1990 -- two and a half years earlier.

After summarizing the always questionable construction that Aviv had placed on the intelligence data in his Interfor Report, Wallace invited Lee Kreindler, lead attorney for the victims' families, to comment on the 'brutal shock' his clients received when Aviv's findings were leaked to the media (in 1989!).

One of them, he said -- 'I love her dearly, she'd lost her husband, a wonderful lady and she said, "Lee," she said, "how do I renounce my American citizenship? The CIA killed my husband." All this is pure fabrication. Out of the mind of Juval Aviv.'

Vincent Cannistraro agreed.

As far as he was concerned, it was 'a transparent attempt to get Pan Am off the hook, which has, as its only purpose, to blame anyone else other than Pan Am for the crash of Pan Am 103'. There was never any CIA involvement with an undercover drug operation at Frankfurt airport, he said. 'No such element ever existed, no such "sting" operation existed at Frankfurt airport.' Nor was the plane targeted because of the five CIA agents aboard, returning home to blow the whistle on a rogue CIA operation.

'Completely false,' Cannistraro declared. 'First of all, there weren't five CIA agents on that plane. There were two CIA agents on that plane. And they made their travel arrangements at the absolute last minute, and therefore there was no way that they could have been targeted, or that flight could have been targeted in advance.' (He did not reveal that the agents had changed their plans on Cyprus, using the DEA's travel agents, RA Travel Masters. This had always suggested to Coleman the possibility that Hurley had told them it was all right to fly Pan Am 103 as it was a controlled delivery flight.)

Wallace then turned to Aviv's claim that he was a former member of the Mossad, a claim rejected by an Israeli source who had described him as 'a junior security officer for El Al'.

'You were fired in April, 1984, after less than eighteen months of work,' said Wallace, 'because you were, quote, "unreliable and dishonest", close quote. And [the statement] goes on to say that after that, you had been, quote, "involved during the years in various acts of fraud and impersonation". So they're lying about you?'

'I'm not saying anything,' replied Aviv. 'I do not discuss. They are free to say whatever they say. I know what I am, and I will not get into it.'

Wallace conceded that some law firms Aviv had worked for had praise for him, 'but others had charged him with everything from ripping off clients for tens of thousands of dollars for spurious investigations, to originally trying to sell his services to the families of those who were killed in the plane bombing ...' (Two years earlier, Aviv's colleague and attorney, Daniel Aharoni, had explained to Barron's that 'our heart was with the families, but the problem was there were 270 victims, and families with all levels of sophistication. How do you report to 270 different clients? And Pan Am was very clear that they wanted the truth. They said, "Let the chips fall where they may".')

Kreindler's recollection was different. According to Wallace, 'he was appalled that Pan Am and the insurers would hire a man like Juval Aviv,' and Kreindler confirmed this on camera.

'They embraced this character, Juval Aviv,' he said. 'The slightest checking on their part would have shown that he was a fraud.' (In the same Barron's article, James Shaughnessy had stated that 'we asked him for references from other law firms ... They checked out in glowing terms.')

At this point, Wallace set up Aviv for a face-to-face confrontation with Cannistraro.

'You've ever talked with him?' he asked Aviv.

'No.'

'Well, he says -- Cannistraro told us -- your theory is -- is totally wrong. He says, a tissue of fabrication.'

'Well, that's his opinion. As ex-CIA, he has to do the party line. He's not going to simply come out and say, Now that I left, I was involved in maybe cover-up. He will not say that. He can't say that.'

'So you would like to talk to Cannistraro, let's say.'

'I would talk to -- well, Cannistraro, I would like to talk to Cannistraro --'

'We're going to make that possible for you right now,' Wallace interrupted. 'Vince? Come on in.'

The results of this ambush, perhaps more appropriate to 'This Is Your Life' than a serious news programme, were not particularly illuminating.

'Almost everything you said is completely fabricated,' said Cannistraro. 'It's invented.'

'Wait a minute,' said Wallace, intervening as they both started to talk at once. 'We're talking about Pan Am 103. What you have said, Juval Aviv, is that the United States government -- that the United States government knew about that bag that was going aboard this particular flight, did nothing to stop it.'

'Yes.'

'Totally false,' said Cannistraro. 'Your report, which I have read very carefully, alleges the existence of a CIA element, which you call CIA-1, at Frankfurt airport. Totally false. Completely false. Today, Mr. Aviv has only speculation, rumours and theory that has not been supported by one scintilla of material evidence. I would like to see it before we continue this discussion.'

Again, they both started to talk, and Wallace cut through to say: 'No, no, no -- with all respect, Mr. Cannistraro, you're ex-CIA.'

'Sure.'

'It has to be suggested that perhaps a former CIA man is not going to point the finger at his own government, at his own agency.'

'Well, I assure you, CIA is probably not very happy that I'm appearing on television, saying these kinds of things. But I had personal friends on that plane who died. And I assure you that I wanted to find the perpetrators of that disaster as much as anyone wanted to. And I really resent people like Juval Aviv and all the other shysters that were involved in constructing this government conspiracy theory blaming everyone else other than Pan Am for the negligence that resulted in that disaster.'

'And the fact is,' added Wallace, cutting away, 'that in a letter dated June 1990, the lead lawyer for Pan Am's insurers, James Shaughnessy, wrote to Juval Aviv that despite probably hundreds of thousands of dollars given him, Aviv had failed to come up with, quote, "a single piece of admissible evidence" for the Pan Am case. It was at that point that Aviv finally went off the insurers' payroll. (A moment's reflection on Wallace's part -- or anybody's part -- might have suggested that Shaughnessy's letter reflected, not 'a transparent attempt to get Pan Am off the hook', but a transparent conviction that Pan Am's case could be supported by admissible evidence.)

'Even after that, though,' Wallace went on, 'Pan Am kept pushing its case in the courts and in the press, kept pushing the idea of conspiracy, focusing now on the US Drug Enforcement Agency instead of the CIA, despite vehement denials from the US government.'

He sounded aggrieved, as if defending a lawsuit were somehow perverse.

"Where did Pan Am's DEA evidence come from? [he asked]. One key source. This man -- Lester Coleman, who claims to have been a key undercover agent for the US DEA. But according to the DEA, Coleman was little more than a low-level informant for a couple of years. He was ultimately fired for, quote, 'lack of integrity and a propensity for fabrication' -- a description we heard repeated by many who have known Coleman over the years.

"Currently, he is in Europe avoiding arrest on passport fraud charges in the United States. And who helped him get out of the US to Europe, from where he supplied an affidavit in support of Pan Am's charge?

"Pan Am flew him there, free of charge."

It was a typical Byronesque shot, right down to the sleazy implication that Pan Am had helped a wanted criminal escape.

At the end of the programme, Wallace would thank Christopher Byron for his help in sustaining the reputation that CBS had already earned in the trade as the Cheap Broadcasting System, but first he had a word with Tom Plaskett, board chairman of Pan Am at the time of the bombing.

'Aviv, who is charged with being an imposter; Coleman, fleeing the United States on passport fraud charges -- these are two of the lead investigators for Pan Am?' Wallace suggested.

'I don't think it's proper to characterize them as "lead investigators",' Plaskett replied. 'In the first place, in intelligence and in the world in which some of these people operate, you simply don't have a diploma hanging on the wall which certifies their credibility.'

'Would you hire Aviv again?' asked Wallace.

'I don't think so,' said Plaskett. (And who could blame him, with media coverage like this?)

At this point, Wallace interpolated a comment from none other than Steven Emerson, who, he said, had written 'about the various parties who, he charges, knowingly bought into Aviv and Coleman's fabrication'.

'They knew they were being conned,' said Emerson, 'but they went along because they had a constellation of the same interests [sic]. The insurance companies wanted to avoid paying out. Pan Am wanted to avoid being accused of being negligent. And the media wanted a good story.'

Not unexpectedly, the principal culprits turned out to be ABC, NBC and Time magazine, who, if Emerson's remarks meant anything, must have been surprised to hear that they shared a common interest in helping the insurance companies to avoid paying out and Pan Am to avoid being accused of negligence.

Cutting back to Plaskett, Wallace quoted from a memo written by Bob Alford, former head of the claims department of the lead insurers, who was 'highly critical of the tactics used by his former employers to avoid paying those big damage claims to the families of Pan Am 103'.

'This man, Alford,' said Wallace, 'senior vice president of your own insurers, says, quote, "These families should have been compensated two years ago. The money that has been spent litigating this case is outrageous." And you acknowledge it's tens of millions.'

'Mike, it has been a very long and difficult process,' Plaskett replied, 'and I certainly have great empathy for the families in waiting so long. But no one has proven how the bomb got on the airplane. The act of wilful misconduct, on which the jury based its verdict, we do not believe will be sustained in a court of appeals.'

With this, Wallace returned to Cannistraro for his 'last word' on the conduct of Pan Am and the insurance companies.

It was 'reprehensible'. And 'despicable'.

'By the way,' added Wallace, in conclusion, 'we, like many in the media, were briefly taken in by Juval Aviv a few years back. We paid him no money but we did provide him with a letter indicating he was checking into certain stories for "60 Minutes". A mistake.'

This was a necessary admission, for Aviv had kept a copy of the letter. It had been written, not 'a few years back' but on 11 April 1991 -- long after Aviv's 'fabrication' had been leaked to the media and 'discredited'; long after Pan Am's 'reprehensible' conduct had been denounced in the media; long after ABC and NBC had knowingly allowed themselves to be 'conned' by Lester Coleman, and months after Emerson had 'unmasked' Coleman on CNN television as a 'low-level DEA informant'.

With all this information at his disposal, Wallace had written:

"Dear Juval Aviv,

"This letter will confirm that you will be working with myself and [producer] Barry Lando as a consultant on numerous assignments for '60 Minutes.'

"Sincerely,Mike Wallace,CBS News/60 Minutes"

A mistake?

' .... surprising, perhaps, that they would hire a private detective like Juval Aviv to help them ...?'

' ... when the slightest checking on their part would have shown that he was a fraud?'

It would be interesting to know what additional information had come Wallace's way between April 1991 and December 1992 to cause him to change his mind so completely about the competence and credibility of Aviv as an investigator. He certainly did not confide it to his viewers or, indeed, tell them anything new. In fact, with the families having already won their case against Pan Am, it was hard to see any point to the programme at all except that, like Byron's New York magazine article, it served the government's purpose in helping to create a climate of opinion hostile to any further questioning of the official line on Flight 103.

So who was 'conned'?

ABC, NBC and Time by Pan Am, Aviv and Coleman?

Or Mike Wallace by the government, Cannistraro and Byron/Emerson?

In the days when CBS News enjoyed a reputation for independence and responsible reporting, '60 Minutes' might well have been more interested in examining the substance of Pan Am's appeal than questioning its right to appeal. For Coleman, watching the programme in Sweden and remembering the days of Ed Murrow and Walter Kronkite, it was a dispiriting experience, all too consistent with the standards of television journalism that had driven him into the coils of the octopus eight years earlier.

It was a bad time in any case.

On 6 January 1993, his father died. So far away, Coleman found that hard to grasp. He would have liked to have been there when his father's ashes were scattered on the lake. He would have liked to have felt, and to be, closer to his mother, and his children by his former marriage. His son was growing up and he had missed his daughter's marriage. There was something dream-like still in not really belonging anywhere, in waiting endlessly in exile for something to happen.

In February 1993, he heard on the grapevine that the Department of Justice had empanelled a Federal grand jury in the Eastern District of Virginia and was trawling through his record, calling witnesses who had known him in his six-year spell with the DIA. Clearly, there was to be no forgiveness for anyone who had tried to bring out the truth about Flight 103 and the tragedy at Lockerbie. Among the grand jury's other targets were Juval Aviv and James M. Shaughnessy.

Then in March, just two months short of the second anniversary of the family's arrival in Sweden, Coleman heard that his application for permanent residence had been denied.

In May 1993, Pan Am's appeal was heard in the U.S. Court of Appeals for the Second Circuit, and although a decision was not expected before the autumn, there seemed little doubt that the judgment against the airline in the 1992 liability trial would be set aside.

The issue had hinged on whether or not Pan Am had complied with FAA directives about the inspection of baggage. Counsel for the relatives had interpreted the regulations as requiring the airline physically to match all interline transfer bags with passengers, so that any bag not accompanied by a passenger would be identified and either hand-searched or left behind.

'To make out their liability theory,' Pan Am's attorneys argued, 'it was necessary for plaintiffs to prove that the bomb was in the suitcase, the suitcase was unaccompanied by any passenger, and the suitcase had been delivered into Pan Am's baggage system by interline transfer from another carrier, Air Malta.

'It was also necessary to show not only that Pan Am's baggage security procedure violated FAA requirements, as construed by plaintiffs, but also that Pan Am had adopted the procedure with a mindset so indifferent to safety as to constitute wilful misconduct.' (On this point, plaintiffs contended that the airline had wilfully broken the rules in order to save money and improve on-time performance.)

In its defence, Pan Am had maintained that it had not only complied with FAA requirements by making an 'administrative match' between passengers and bags, as allowed by the rules, but had also used state-of-the-art X-ray machines to inspect all interline bags, accompanied or not. (A physical match would have required passengers to go out on the tarmac and identify their bags before they were loaded aboard the aircraft, a process so time-consuming that no airline routinely performed such a match, not even El Al.)

The airline's counsel went on:

"Defendants attempted to show, but were precluded from showing, that because Pan Am believed the relevant FAA regulation to be unclear, it had obtained (or thought it had obtained) the FAA's concurrence with Pan Am's baggage security procedure. Defendants were also precluded from showing that Pan Am's X-ray inspection of interline bags was permitted by British aviation authorities, and defendants were precluded from rebutting the testimony of the plaintiffs' expert that unaccompanied bags posed such a unique risk as to make the use of X-ray inspection inappropriate.

"In addition, Pan Am set out to show, but was precluded from showing, that plaintiffs' theory of how the bomb was planted on board the aircraft was implausible and that other possibilities for which Pan Am would not be responsible were more likely."

This last point was crucial.

While fully accepting the implications of the hard, forensic evidence, Pan Am's counsel insisted that the Libyan/Air Malta theory, advanced by government and plaintiffs alike, rested on circumstantial evidence alone: namely, that the bomb bag had contained items of clothing purchased in Malta, that baggage records from Frankfurt airport purported to show that an unaccompanied bag from Flight KM180 had been transferred to Flight 103, and that a schedule prepared by the Scottish police had matched every bag with a passenger except one, the unaccompanied bag containing the bomb.

With testimony and records from Air Malta showing that no unaccompanied bag had been loaded aboard Flight KM180, and with substantial questions still unanswered about the validity of both Frankfurt's baggage records and the bag-matching schedule, in Pan Am's view, the plaintiffs' circumstantial evidence was simply not enough to establish how the bomb got aboard.

Denied access to official sources of information on grounds of 'national security', the airline had attempted to offset its handicap by calling five expert witnesses who, between them, would have discounted the Air Malta theory as both implausible and insufficiently supported by the evidence. Four of the five were not permitted to testify, however, and the fifth only on a minor, peripheral matter.

(Two of the excluded experts were British: John Horne and Peter Gurney, both with wide experience of terrorist bombings and bomb disposal operations gained in service with the British Army and Scotland Yard. Formerly in charge of the explosives section of the Yard's anti-terrorism branch, Gurney had personally disarmed a bomb intended for an El Al flight in 1986, and in 1991 had defused two IRA mortar bombs launched at 10 Downing Street.)

Worse still, at no point in the trial proceedings had Pan Am been allowed even to mention the possibility that a rogue bag might have been slipped into the system further down the line in order to bypass its security checks. Nor was it allowed to cross-examine one of the plaintiffs' own experts on the subject of 'rush-tag' bags, which, by definition, are unaccompanied by their owners.

This last turned out to be particularly damaging.

When Pan Am called Kurt Maier, operator of its baggage X-ray machine at Frankfurt on the day in question, he testified, first, that he had been told to call a supervisor if he saw a radio inside any bag, and second, that none of the 13 unaccompanied bags he screened for Flight 103 had contained a radio-cassette player. (When Maier's competence as an operator was challenged, Pan Am sought to demonstrate the X-ray machine to the jury in order to prove that anyone, trained or not, could identify a radio-cassette player from the image on its monitor, but once again, the airline was not permitted to do so.)

Maier's testimony was crucial because the plaintiffs (and the government) insisted that 12 of the 13 bags had been accounted for, and that the 13th was the one with the bomb.

Pan Am, on the other hand, contended that the 13th bag must have belonged to a Pan Am captain who had sent two suitcases home from Berlin via Frankfurt, rush-tagged to Seattle via New York, before piloting a flight to Karachi. One suitcase had unaccountably been left behind at Frankfurt. The other, containing Christmas presents for his family, was found at Lockerbie. As this was not among the 12 unaccompanied bags officially accounted for, and as all 13 had been X-rayed and cleared, the 13th bag could not, therefore, have contained the bomb.

On attempting to cross-examine one of the plaintiffs' own experts on the subject of rush-tag bags, however, Pan Am's counsel was specifically barred from asking if the 13th bag could not, in fact, have belonged to the pilot. They were also prevented from asking another of the plaintiffs' experts if it might not have been easier for a terrorist to have placed the bomb in a parcel of cargo rather than in an unaccompanied bag.

Having listed many instances where Pan Am's defence had been hampered, in counsel's opinion, by such rulings and by the improper exclusion of evidence, the airline's appeal documents then turned to those occasions when evidence for the plaintiffs had been improperly admitted. Depositions were allowed, for instance, alleging previous misconduct on Pan Am's part that had nothing to do with the plaintiffs' Libyan/Air Malta theory, and their experts were also permitted to give 'lengthy one-sided summaries of the evidence and to render expert opinions that [improperly] judged the credibility of witnesses.'

Closely reasoned, meticulously documented and including a catalogue of alleged procedural and technical errors, Pan Am's appeal brief, and the subsequent hearing in May 1993, left little doubt in anyone's mind that the original proceedings had been fatally flawed and that a new trial would be held before a different judge, probably in the spring of 1994.

Indeed, the only serious reservation expressed by legal observers about the outcome had less to do with the validity of Pan Am's appeal than with the integrity of the American judicial system under extreme government pressure. If a new trial is ordered, and if Pan Am is allowed to make its defence unhindered, the stage will be set for the final demolition of the plaintiffs' case against the airline, and with it, inevitably, the government's case against the two Libyans, al-Megrahi and Fhimah.

With a five-year cover-up to explain away, not to mention its cynical manipulation of the United Nations to engineer the imposition of international sanctions against Libya, the American government's commitment to the Libyan/Air Malta theory will subject the Federal judiciary to one of the most severe tests it has had to face since the separation of powers was written into the constitution.

If Lester Coleman's hopes are realized, the result of Pan Am's appeal may also persuade the octopus to leave him in peace at last, although, having gone to ground again in the face of Washington's vendetta, he now believes there is probably more to it than meets the eye. Since his story is now supported by no less an authority than Major Khalil Tunayb, a former chief of intelligence for the PFLP-GC, there would seem little point in continuing to harry him so relentlessly unless there were some wider reason.

(During the winter of 1992-1993, Tunayb surfaced in the media to confirm that Khalid Nazir Jafaar had been affiliated with Muslim fundamentalists in Lebanon and Detroit who knew he was working in drug operations for the DEA and CIA. According to Tunayb, Jafaar was used by the PFLP-GC as an unwitting accomplice to get the bomb bag aboard Flight 103 and had been escorted from Beirut by two equally unwitting American agents. Significantly, Tunayb's story supports much of the intelligence data provided in Juval Aviv's original Interfor Report.)

So what else did he know, Coleman wondered, that might account for Washington's unabated intent to silence or discredit him?

Looking back over his career as an American agent in the Middle East, he realized that most of his work had been concerned with tracking Syria's involvement in terrorism, hostage-taking and narcotics. In the course of his duties, he had helped compile dossiers on the likes of Rifat Assad, Monzer al-Kassar and Ali Issa Dubah which, in any civilized country without a death penalty, would have put them behind bars for life.

All else being equal ...

In fact, Rifat Assad, a vice president of Syria, returned home from exile in August 1992, and is thought to be undergoing a low-profile rehabilitation in Damascus with a view to succeeding his older brother, Hafez Assad, when the time comes. The President's health is poor, and his son, Basil, is generally regarded as too young and too lightweight for the job. As heir to the presidency, Rifat is clearly Washington 's best bet in countering the threat of a militant fundamentalist take-over on his brother's death -- and the fact that he was, or is, a CIA asset hardly undermines his qualifications!

Adding weight to the idea that the American government and its allies are lending a hand to clean up Rifat's act, the virtual disappearance of his partner Monzer al-Kassar after his arrest in Spain in the summer of 1992 neatly removed another awkward reminder of their controlling interest in America's heroin imports. (His conditional release a year later, on £10 million bail, was also a reminder of his enduring influence with the intelligence agencies of those governments.)

With Rifat's friend and colleague, General Ali Issa Dubah, promoted soon after to the post of Hafez Assad's deputy chief of staff for security affairs, and thus well clear of any further day-to-day involvement with the Syrian narcotics industry, Coleman was moved to wonder if, perhaps, he was now the last unmuzzled American witness who could testify directly as to Rifat Assad's unsuitability for any political role in the Middle East, most of all, that of America's key Arab ally.

Could it be, he asked himself, that what he knew about Lockerbie was just part of what he knew about Syria, and that what he knew about both left the whole of America's Syria-first policy open to question?

To see if a Democratic administration would take a more sympathetic view of his plight, Coleman addressed the following petition to President Bill Clinton, with a copy to the new Attorney-General, Janet Reno:

"'Mr. President,

"I spent two years assigned to the White House as a radio correspondent during the Carter administration. My work has been recognized with two Emmys and several other national reporting honors.

"In the mid-80's, I left journalism and became involved with two government agencies, the DIA and the DEA, affiliated with classified activities in Lebanon. My background in the Middle East was of interest to my government. I grew up in Iran and Libya, for example.

"I witnessed conduct within the US DEA in particular that was not conducive to operational security. I still feel this lax security at DEA Country Office Nicosia may have contributed to the bombing of Pan Am 103. I gave an affidavit, April 1991, that I observed a Lebanese, later identified as Khalid Jafaar, at a DEA office where I was working in 1988, six months prior to the bombing. Jafaar was killed on 103. DEA has repeatedly denied Jafaar had any connection with them.

"On May 2, 1990, I was arrested for making a false statement on a passport application, using a birth record provided to me by the US government. We now have conclusive evidence that this arrest was directly related to my knowledge of DEA's activities that may have been compromised by elements linked to the Pan Am bombing.

"My wife, children and I were subsequently harassed. Death threats were made to us, and I was warned by a DEA agent directly not to get DEA involved in my case.

"In 1991, in fear of our lives, we fled the USA and sought sanctuary in Sweden. I left the USA legally, with permission of the U.S. District Court in Chicago. After our arrival here, the FBI continued harassment by faking a doctor's appointment before the court. The doctor the FBI stated they had appointed declared that he was never contacted by the United States government. I complied with the terms of my bail release, reporting to pre-trial services biweekly up until the FBI's false doctor's appointment episode. Afterwards, I asked, and received, protection from the Swedish authorities for me, my wife and three children.

"We have since obtained a copy of a FBI file which was leaked by closet patriots within the Bureau. This file contains false statements about me regarding the passport case pending in Chicago.

"We have been waiting patiently, Mr. President, for the appointment of a new Attorney General who will hopefully clean out the gross misconduct under the Bush administration, which includes persecuting this American citizen, forced to flee his homeland.

"I request that Attorney General Janet Reno investigate this matter. We wish to return to America but will not do so until the United States government stops persecuting us, drops the charge in Chicago and shall look upon me as a witness, not a fugitive.

"A book entitled 'Trail of the Octopus' documenting the events of the last three years shall be published this fall. I hope your administration will extend an olive branch and distance itself from the conduct of a morally corrupt Bush Justice Department and arrange for us to come home."

Coleman sent his petition by fax, the machine confirming that the transmission had been received, and provided a fax number to which the White House could reply.

That was on 15 March 1993.

By mid June, having heard not a word, the Coleman family resigned itself to a life on the run.

Donald Goddard’s narration of events concludes with Pan Am’s submission of its appeal to the United States Court of Appeals for the Second Circuit in Case Numbers 92-9251, 92-9253, and 92-9255. While Goddard was hopeful that what he saw as errors in the trial process would be remedied on appeal, he questioned whether the judicial process would be up to the challenge of doing justice where the result might be to reopen a chapter in history that the U.S. government clearly wanted closed.

Two appellate decisions rendered, the first on January 31, 1994, and the second on September 12, 1994. Neither decision accorded any substantial relief to Pan Am, and both were “split decisions,” by the three-judge panel. Both majority opinions were written by Richard J. Cardamone, a Reagan appointee who is still on the bench. Both dissenting opinions were written by Ellsworth Van Graafeiland, a Ford appointee who passed away in 2004.

Justice Cardamone’s smooth rejection of Pan Am’s position is in sharp contrast to the objections of Justice Van Graafeiland, who observed at the outset that the position he was obliged to take would make his “name anathema to the hundreds of people who are seeking recoveries probably in excess of $1 billion, and my long-time friendship with [District] Judge Platt may suffer some stress.” Apparently stung by the strong criticism of the District Judge’s refusal to allow testimony that the FAA had orally approved Pan Am’s policy of x-raying luggage rather than forcing travelers to open it up on the tarmac and affirm it as their own before boarding the plane, Justice Cardamone adjusted the contours of his reasoning somewhat after Pan Am sought and obtained a re-hearing. The September 14th Opinion liberally applied the doctrine of “harmless error,” which is to say that, that even if Pan Am had been able to introduce all of the evidence Judge Platt excluded from the case, the jury would’ve found Pan Am liable anyway.

The following excerpts are drawn from the text of the opinions. Ellipses have not been utilized, and professional readers are directed to the original decisions, easy to find by punching the case numbers into the Second Circuit decision database.

Excerpts From the January 31st Majority Opinion

On December 21, 1988 a bomb exploded on Pan Am Flight 103 causing it to crash over Lockerbie, Scotland. The 243 passengers and 16 crew members aboard the flight traveling from London to New York all perished. Numerous plaintiffs, including those in the cases before us, brought wrongful death actions against Pan Am and Alert, a Pan Am affiliate that provided security services in London and in Frankfurt, where Flight 103 originated. All those actions were consolidated for trial in the Eastern District of New York.

On July 10, 1992 the jury found that the defendants engaged in wilful misconduct that led to this fatal crash. The trial's liability phase centered on Pan Am's alleged noncompliance with FAA directives concerning baggage inspection, particularly with regard to unaccompanied baggage that might contain explosives. Additional proof was introduced regarding other alleged misconduct on the air carrier's part. Plaintiffs contended that the bomb entered the flight on an unaccompanied bag that Pan Am, through its wilful misconduct, failed to inspect and detect. Under plaintiffs' theory -- detailed by several expert witnesses -- the bomb was hidden inside a radio-cassette player packed in a bronze Samsonite suitcase. The suitcase supposedly traveled from Malta to Frankfurt on Air Malta Flight 180. There, the experts posited, it was transferred to the first leg of Flight 103 from Frankfurt to London, where it was then placed on Flight 103 bound for New York.

Although bags transferred from other flights to Flight 103 in Frankfurt were x-rayed, plaintiffs asserted the airline's x-ray procedure violated security requirements contained in the FAA ACSSP, particularly those regulations ensuring that bags matched passengers and that any unaccompanied bags be physically inspected. Pan Am unsuccessfully argued to the jury that its actions did not amount to wilful misconduct, and that it was impossible to determine how the bomb was planted on Flight 103. To meet plaintiffs' claims of wilful misconduct, Pan Am and Alert emphasized that the transferred bags had been examined using x-ray equipment, but that no bomb was discovered. They challenged plaintiffs' theory of causation and suggested that even if there were any misconduct on their part, it did not lead to the crash.

Appellants … focus on … three different lines of proof they were not allowed to present to guide the jury's application of that standard, that is, the oral waiver, the British regulations, and expert testimony regarding the threat posed by unaccompanied baggage.

Defendants maintain that an FAA official granted them an oral waiver excusing strict compliance with certain FAA regulations, and that Chief Judge Platt abused his discretion when he disallowed their evidence purporting to demonstrate their belief in this waiver. Defendants' argument essentially is that this evidence would have shown that their x-ray inspection of interline bags complied with FAA requirements or that, regardless of FAA requirements, they did not act with conscious or reckless disregard of the probable consequences of their x-ray procedures since they thought the safety precautions they were following were permissible.

In support of this point, Pan Am points out that a regulation may be interpreted orally, and that the regulation at issue is ambiguous and therefore susceptible to such an interpretation. As a matter of law the FAA regulation at issue here -- ACSSP XV C.1.(a) -- is not ambiguous, as the following Discussion demonstrates.

Pan Am and Alert assert that physical inspection could be interpreted to mean an x-ray inspection. For several reasons, we think this a strained reading of the unambiguous regulation. First, the FAA promulgated "Physical Inspection Guidelines" in the ACSSP which specified that physical inspection involves opening and inspecting all compartments of baggage. The guidelines do not mention x-ray as an acceptable means of inspection. Second, the jury heard testimony from Pan Am's own General Manager at Heathrow, and other witnesses as well, that physical inspection under the regulations involved opening up bags and that x-raying them did not satisfy the regulation. Third, ACSSP regulations applicable at other, lower security airports explicitly permitted x-ray or physical inspections. Thus, it is plain that the regulations applicable at Frankfurt and London's Heathrow were unambiguous: they did not permit x-ray inspections as a substitute for a physical inspection. We hold, therefore, that the district court did not err in refusing to allow witnesses -- like the co-chair of the Pan Am Security Task Force, Richard Cozzi -- to testify that they thought the regulations were ambiguous.

Given that the FAA regulation in question is not ambiguous, Pan Am next asserts it obtained an oral waiver of the regulation from the FAA and that the district court erred in disallowing evidence of that waiver. But since FAA regulations state that any waiver of its requirements must be obtained from the FAA in writing, appellants would not have been justified in relying on an oral waiver.

The Director of the Office of Civil Aviation Security at the FAA at the time of the Pan Am bombing, Raymond Salazar, testified that in order to obtain an exemption from an ACSSP regulation an air carrier would have to file a written request and follow a specific procedure that was then in place. Plaintiffs produced the e-mail message that Pan Am security officer Daniel Soneson had sent to the regional Pan Am security representatives at Heathrow and Frankfurt. The e-mail message, dated March 28, 1988, stated in part, "the Dir. FAA R Salizar has granted x ray as and [sic] alternative to searching pass. baggage." Salazar testified that that representation was inaccurate and a misrepresentation, and when pressed by counsel, characterized it as "a falsehood."

The excluded evidence concerning the oral waiver primarily involved the testimony of two witnesses. We are told that the first witness, Daniel Soneson, would have testified that he approached the FAA in 1986 and received a verbal authorization for the x-ray-only inspection of interline bags, though he could not recall who gave this authorization. He would have testified further, so defendants state, that at an October 1987 meeting with Salazar and others he was advised that x-ray inspection would comply with ACSSP requirements. The trial Judge suggested that an offer of proof outside the presence of the jury be made regarding this witness' proposed testimony, but for some reason Pan Am chose not to make such an offer:

The second witness proffered by the defense was a former co-chair of the Pan Am Security Task Force, Richard Cozzi. Although Cozzi testified at trial, he was not permitted to testify as to Pan Am's purported verbal authorization from the FAA. Even had Cozzi been permitted to testify on this issue, his statement respecting what Soneson reported would have been inadmissible hearsay and would not have been admissible at trial in any event.

In a series of oral rulings repeated throughout the record, the trial Judge stated that any testimony by defense witnesses as to the purported verbal authorization would be excluded. It treated the proffered defense as an attempt to mount a so-called government authorization defense, the bounds of which will be discussed shortly. Chief Judge Platt believed that a government authorization defense may only be predicated on authorization from a government official with power to grant such authorization. He held the defense unavailable because anyone who might have given a verbal exemption at the FAA would have had no authority to do so.

We believe what appellants sought to present at trial was essentially a mistake of law defense, that is to say, defendants thought what they were doing was in accordance with the law and, even if they were mistaken, they think under such a circumstance they should not be held liable for wilful misconduct. The usual standards defining the permissibility of a mistake of law defense are as effective where the mistaken law is a regulation.

There is cause to be wary because of the ease with which air carriers could fabricate sham defenses and ignore with impunity safety regulations. Instead, where one of the handful of corporations in the business of transporting the public by air asserts a mistake of law as its defense to wilful misconduct under the Warsaw Convention, it may only present its objectively reasonable beliefs as to the law's requirements. To state this in other words, because of the legal status of the FAA regulations and the duty of air carriers to know and follow them, an absence of wilful misconduct -- when based on a claim of a mistaken understanding of those regulations -- must be supported by objectively reasonable evidence as to that mistaken understanding. When a law, rule or regulation that pertains to passenger and crew safety is clear and no reasonable air carrier would have believed it was authorized to act in contravention of it, we hold that an air carrier may not successfully mount a defense based on its assertion that it did not know the law.

Pan Am and Alert presented a strong defense to the jury that even if they violated the ACSSP, their actions did not amount to wilful misconduct. They insisted that a bomb contained in a suitcase would have been visible on x-ray. In fact, the parties stipulated to that fact. Appellants' counsel emphasized in closing argument and elsewhere the safety and expense of the x-ray technology purchased and employed by Pan Am, the fact that even an untrained person could spot a radio on one of their x-ray machines, and made the point that FAA inspections had shown Pan Am x-ray equipment to be in compliance with regulations.

Appellants' motion to exclude proof not tied to the Air Malta theory of causation (that the bomb bag came from an interline transfer) was denied by the trial court. It observed that since appellants planned to contest the Air Malta theory, plaintiffs were entitled to present evidence of alleged other misconduct on defendants' parts. The trial Judge reasoned that even if the Air Malta theory did not explain the bomb's presence on Flight 103, other pervasive and extensive wilful misconduct by defendants must have accounted for the bomb's presence.

Plaintiffs asserted that a contempt for security pervaded Pan Am from the highest to the lowest levels of the corporation, and that the totality of security failures would permit the jury to infer wilful misconduct. We have approved consideration of the totality of a defendant's wrongdoing in determining whether wilful misconduct existed.

Various attempts by appellants to suggest other specific causation theories were … rebuffed by the trial court. Pan Am and Alert challenge the exclusion of the testimony of four defense witnesses: two offered as experts on terrorism, Noel Koch and Dr. Ariel Merari, and two offered as experts on terrorist bombings, Peter Gurney and John Horne of Scotland Yard. Pan Am also contends it was error to restrict its cross-examination of plaintiffs' experts, Billie Vincent and Rodney Wallis (the former Director of Security for the International Air Transport Association), with respect to other methods of bombing. The trial Judge based his rulings largely on the fact that he found appellants had offered nothing to show there was any other specific bombing theory. Because there was no evidence presented with respect to other possible methods of causation that might explain how this tragic event occurred, and because appellants never sought to show that any other specific method of bombing could have caused it, any testimony relating to such other causes would necessarily be speculative.

It was also not error to decline to receive the testimony of terrorist bombings experts Peter Gurney and John Horne. Their testimony as to the importance of x-rays would have been cumulative since similar testimony was adduced from other witnesses. Additionally, these witnesses' expertise as to x-rays was questionable. Both witnesses were explosives officers with Scotland Yard who specialized in street bombings.

Scottish Detective Constable Derek Henderson provided deposition testimony as to his work in the Flight 103 investigation. He was assigned responsibility for matching certain bags -- the ones that might have been placed in the flight container that was determined to have held the bag with the bomb -- with passengers on the aircraft. Henderson prepared his report largely through compiling computerized records of bags. These computerized records had been set up to amass reports from passengers' and crew members' friends and relatives, and from evidence obtained at the scene of the crash.

Pan Am and Alert also sought to include an x-ray demonstration as part of their defense to show how clearly a radio-cassette player would appear on the screen. Such a demonstration was ultimately ruled irrelevant, given plaintiffs' offer to stipulate that a radio-cassette player would be visible on an x-ray screen. Pan Am and Alert nevertheless declare the demonstration would have generally supported Pan Am x-ray operator Kurt Maier's testimony that he x-rayed all the interline bags transferred to Flight 103 in Frankfurt.

From the January 31, 1994 Dissenting Opinion

VAN GRAAFEILAND, Circuit Judge, Dissenting:

Writing a Dissenting opinion in the instant case is not a pleasant task. My name will be anathema to the hundreds of people who are seeking recoveries probably in excess of $1 billion, and my long-time friendship with Judge Platt may suffer some stress. However, because I am convinced that Pan Am*fn1 did not receive a fair trial, I would be shirking my duties as a Judge if I did not say so.

At one point near the end of the trial, Pan Am's counsel said to the court:

“Now, Judge, I would tell you, on a scale of 1 to 10, doing what I want in this courtroom, I have been about a minus 2, or maybe imaginary numbers would be a better way to describe as the level to which I have gone.”

I have read the record dispassionately, and I completely agree with this observation. Plaintiffs' attorneys were permitted to range far and wide with prejudicial, irrelevant testimony, while Pan Am's counsel was precluded time and again from presenting relative and probative proof. Because I recognize that evidentiary rulings are largely discretionary and because I want to follow the somewhat unusual practice, at least for me, of quoting at length from the record, I will limit my Discussion to what I deem the major reversible errors.

At the outset, I want to state one clear and uncontrovertible fact: NO ONE KNOWS WHEN, WHERE OR HOW THE BOMB GOT ON THE PAN AM PLANE EXCEPT THE PERSON WHO PUT IT THERE.

The jury had to content itself with "expert" testimony, more properly described as educated guesses. My colleagues summarize the plaintiffs' proof as follows:

Under plaintiffs' theory--detailed by several expert witnesses--the bomb was hidden inside a radio-cassette player packed in a bronze Samsonite suitcase. The suitcase supposedly traveled from Malta to Frankfurt on Air Malta Flight 180. There, the experts posited, it was transferred to the first leg of Flight 103 from Frankfurt to London, where it was then placed on Flight 103 bound for New York.

The accuracy of the supposition that a suitcase carrying the bomb was sent unaccompanied from Malta to Frankfurt, was transferred there to a Pan Am plane in which it was flown to London, where it was transferred to the plane in which it subsequently exploded, was a crucial issue in the case, because plaintiffs' theory of liability was based upon Pan Am's allegedly deficient baggage checks during the two transfers. If there were no transfers, there could not have been any willfully deficient screenings. The district court permitted plaintiffs' experts to testify in support of the supposition but precluded any testimony by defendant's experts in opposition thereto. Having read the testimony of Pan Am's experts that the district court kept from the jury, I am convinced that had the jury been permitted to hear this evidence, there is a strong likelihood it would have rejected plaintiffs' contention that the bomb which exploded began its deadly journey in Malta.

The jurors who had suffered through the same experiences that many of us have, with missed planes and lost luggage during connecting airline flights, probably wondered how presumably clever and experienced terrorists reasonably could have expected an unaccompanied bag containing a bomb to travel from Malta to Frankfurt to London, through two sets of baggage checks, to be smuggled finally aboard Pan Am Flight 103 and explode only after the plane had left London. The jurors' willingness to accept the plaintiffs' theory undoubtedly would be influenced in large measure by what Pan Am's witnesses said.

The first refutation of plaintiffs' supposition came from Wilferd Borg, the general manager of ground operations for Air Malta, one of the few witnesses produced by defendant whose testimony was admitted:

Q What were the circumstances under which you saw the flight file at that time?

A. Our office in Germany had received a request from the German police requesting us whether we had any passengers or baggage connecting to Pan American flights out of Frankfurt. They said they were investigating this, they wanted this information in view of the Lockerbie incident in December, '88.

Q. And what did you do with respect to their request?

A. The request was passed along to me by our office in Germany. I requested the manager responsible to keep these records, to give me this relevant flight file. I went through it and gave the relevant replies to the German police.

Q. What were those replies?

A. We had no passengers connecting on the flights out of Frankfurt. We had no baggage destined to go in flights out of Frankfurt. And, we had no unaccompanied luggage on that flight.

Q. Now, sir, based upon everything that you've read and all the investigation that you did, are you able to tell this jury whether or not there was an unaccompanied bag on Flight 180?

A. No, there was no such bag.

Q. Were there any bags destined for Pan Am, any Pan Am flights?

A. No, there are no bags.

Q. Any passengers destined for any Pan Am flights?

The following testimony of Dr. Ariel Merari of Tel Aviv University, an expert on terrorism and bombing, also would have shed unfavorable light on the Malta-origin "theory." However, this testimony was kept from the jury.

Q. Do you think, sir, that it is conjectural how the bomb got on board?

A. Could you please rephrase the question.

Q. Do you know how the bomb got on board?

A. No, I don't.

Q. Do you think any, based upon the readings you have done in this record, a fair-minded, honest, so-called expert, with a reasonable degree of professional certainty, could opine how the bomb got on board?

A. Well, of what I have read, including the trial transcripts, I cannot see how anybody can say with any degree of certainty how the bomb got on board.

Q. Do you have any level of familiarity with what our government has been saying with respect to the indictments of two Libyans?

A. Yes, I do.

Q. And have you had, to the extent you can discuss this in this forum, a conversation with any representatives of security or secret services of any governments on that subject?

A. Yes.

Q. Has whatever knowledge that has come to you through those discussions in any way changed your view that an honest and reasonable chap cannot say to a reasonable degree of professional certainty how this bomb got on board?

A. No. I still feel that I don't know how the bomb got on board and I don't think that at this particular stage, before more intelligence information comes in, which may be a long time after the incident, in some cases, I still feel that I don't know how the bomb got on board and I don't think anybody knows for sure or even in any degree of reasonable certainty how the bomb got on board at this time, except for the terrorists, of course.

Q. Is it possible that a bomb was smuggled on board Pan Am 103 by an unwitting courier?

A. I think it is.

Q. Has that possibility been widely discussed secretly in the intelligence community?

A. Yes, it has.

Even stronger refutation of the Malta theory was given by Peter Gurney, a Scotland Yards bomb expert, whose testimony also was kept from the jury:

Q. Let me ask you this: Do you have an opinion based upon your review of the data made available to you of the existence of the fire system that existed in that Neus Toshiba bomb B 453 radio cassette?

A. I do have an opinion.

Q. What is it?

A. I cannot see how such a device could have been used on a multi leg journey with one of the earlier legs being of longer duration than the flight on which the explosion took place.

Q. If you were a bomb designer wanting to blow up Pan Am 103 over the Atlantic Ocean on [sic] off the coast of the United Kingdom would you use the Air Malta routing suggested in this case?

A. I'm not a bomb designer. We often have to think like terrorist [sic] in order to combat them. I would think that that was very unlikely because air travel there are many delays in air travel. Normally on the ground. So to work up the exact timing to get the thing to go off when you want it and not have it go off on the ground could be extremely difficult. This is used in a straightforward timer, sir.

Finally, the defense made an unsuccessful offer of proof of testimony by Noel Koch, a security consultant for the United States Department of Defense. If Koch had been permitted to testify on the subject, he would have said that the Air Malta theory is "widely at variance with modus operandi of Middle Eastern Terrorists attacks and specifically attacks on United States airlines," and that the "Air-Malta theory involves far too many variables to jibe with usual modus operandi." He also would have testified that the Pentagon relies on x-rays to scan baggage.

Admittedly, a district Judge has wide discretion in determining whether to admit evidence. However, this discretion "may not be utilized to exclude the otherwise admissible opinion of a party's expert on a critical issue, while allowing the opinion of his adversary's expert on the same issue." "Rule 403 requires even-handedness." The district Judge's lack of even-handedness cannot be justified by his reliance on the indictment of two unapprehended, unquestioned and unapproachable Middle Eastern terrorists:

THE COURT: And I must view the evidence that we're talking about in that light, not in the light of a criminal case, because we're not in a criminal case.

MR. CODDINGTON: Exactly. And my submission to you is that you may not give any evidentiary weight to the fact of that indictment.

THE COURT: No, But I may give evidentiary weight, probable cause weight to the fact that a grand jury has returned the indictment. Not in a criminal case, but in the civil case, for purposes of, I may not so instruct the jury, but as a qualifier from my standpoint, I may give it that weight. In fact I must.

Because the house of cards to the effect that the bomb entered the stream of commerce in Malta was constructed entirely of opinion testimony introduced by plaintiffs, simple Justice required that defendant's experts be given an opportunity to demolish it. "The admission of a report containing 'Conclusions' is subject to the ultimate safeguard--the opponent's right to present evidence tending to contradict or diminish the weight of those Conclusions." Denial of this "ultimate safeguard" in the instant case was prejudicial reversible error.

Everyone who boards an airplane justifiably believes that guns, bombs and other dangerous devices will be detected by x-ray screening and barred from the flight. That, obviously, is what Pan Am believed, and Pan Am wanted to show that it was encouraged in this belief by assurances from Raymond Salazar, Director of the Federal Aviation Administrations Office of Civil Aviation Security, that x-ray inspection of interline baggage would satisfy FAA requirements. Plaintiffs' attorney knew from pretrial depositions that testimony to this effect would be given by Daniel Sonesen, Pan Am's Assistant Director for Security, and the attorney determined to meet this testimony head on. He did this by offering in evidence in his affirmative case an E-mail message from Sonesen to Pan Am's airport security officers, which read in part as follows:

PER MESSAGE OF 10 MAR-88 ANSWER: FAA R SALIZAR HAS GRANTED X-RAY AS AND [sic] (alternate to searching Pass.)

Following this piece of evidence, plaintiffs' counsel offered the following testimony of Salazar:

Q. This document is something more than that, isn't it, sir? It says that you granted x-ray as an alternative doesn't it?

A. Yes, that is what the document says.

Q. You just said to me that you never granted that to Mr. Sonesen?

A. That's correct, I did not.

Q. You had never even spoken to Mr. Sonesen, did you?

A. About this issue, I have no specific recollection of speaking to Mr. Sonesen about this issue.

Q. Therefore, sir, if you didn't grant permission to Mr. Sonesen, and he said in this document you did, isn't that a lie?

A. It is an improper interpretation.

Q. It is an improper interpretation. I am not talking interpretation now of the procedures, I am talking about the statement: R. Salazar granted. Is that statement accurate?

A. No, it is false.

Q. So that statement, as it goes, R. Salazar has granted, is a lie.

Q. Can we agree that when Mr. Sonesen said that you had granted, in this phrase, that that was a falsehood?

A. That was a falsehood.

On the basis of Salazar's testimony, the district Judge made a colossal blunder by a sua sponte ruling [Editor’s note: sua sponte means “on his own initiative”] that was so contrary to established legal precedent and simple Justice that it smacked of a due process violation--he declared that he would receive no testimony from Sonesen or any other Pan Am employee in support of Sonesen's assertion of what Salazar had told him, Sonesen, whose testimony was an important part of Pan Am's defense, was branded a liar, and the district court precluded Pan Am from attempting to prove that he was not. So far as the jury knew, a substantial part of Pan Am's defense was built upon a lie, or as plaintiffs' counsel described it in summation, "a concocted piece of baloney."

Now, to lay to rest any argument that the district Judge was not fully aware of what Pan Am intended to prove in response to Salazar's testimony, I quote from the trial testimony:

THE COURT: As I understood, your position is somebody in the FAA, I don't know who, told Sonesen or somebody in Pan Am verbally once they had the x-ray machine they didn't have to physically search a couple of bags.

MR. SHAUGHNESSY: That's correct.

THE COURT: That is your position.

MR. SHAUGHNESSY: I understand.

THE COURT: I won't allow that offhand remark in when I have no basis for it at the moment.

MR. SHAUGHNESSY: What I propose to do is end my examination at this point and raise this question as part of my direct case.

THE COURT: Based on what I know I won't let that in.

THE COURT: Mr. Sonesen's testimony was, as I recall it, and it's right here before us, Sonesen's testimony was that I got this verbal permission from Salazar, we discussed it up and down the hierarchy which would include these Discussions here right up to what's his name.

MR. SHAUGHNESSY: Your Honor, what Salazar and Billie Vincent said was that Salazar had the authority, he just couldn't do it orally.

THE COURT: Salazar had the authority, but there has been nothing produced in writing and Sonesen said he got it orally and he acted on it orally and he told all of these people that he had the authority from the FAA and it's irrelevant what he told people in the Pan American organization on this subject, because he didn't have the authority. It's like my saying to you that I have the authority to go over and remove the money from the Chase Manhattan Bank. You know I don't, and you can't go and say gee, whiz, I'll go spend that sum of money that he promised me from the whole because you know that it's ill-gotten gains and you know that it's that simple.

MR. SHAUGHNESSY: No, it's not.

THE COURT: Yes, it is.

MR. SHAUGHNESSY: No, it's not. This is not a statute that's being violated. This is not even a regulation that is being violated. This is a rule promulgated under the regulations that is being violated.

THE COURT: It doesn't make any difference. According to the very rule, that cannot be altered or modified except in writing. And you're charged with that knowledge and all of these people are charged with that knowledge and they never did have any writing.

MR. SHAUGHNESSY: So I take it that all of the conversations among these people are out?

THE COURT: Obviously they're not objecting to it, but I'm going to sustain those three questions that he's objected to and I'm going to--you might as well know now that I'm going to sustain the questions and answer on page 78.

MR. SHAUGHNESSY: I understand, your Honor.

THE COURT: And anything else that they object to in between I'm going to sustain because I think it's irrelevant.

The district Judge never budged from his misunderstanding of the law:

THE COURT: The proposition before us is that Sonesen says--Sonesen not being Pan Am corporation, about whom we are talking, but only an employee [sic] of Pan Am. Sonesen says he got verbal permission from Salazar. The cases are quite clear, that that is in admissible under the issue of lawfulness or otherwise, and I have never seen anything at the moment, recently, that casts any doubt on it.

THE COURT: Ever heard the expression, an individual may not bind the government?

MR. CODDINGTON: Ever heard the expression that an individual may not bind the government? Yes, I have.

THE COURT: The government enacted a regulation or promulgated a regulation, I may not take off my robe, I may not work until executive capacity authorizes to make that. United States against Sorenson [sic] regulates, while on this subject, said: Whoever had the authorization from the DIA and C.I.A. to smuggle guns to Russia, and so forth and so on, and the 2d. Circuit upheld, may not do that verbally. That's the law. This theory of yours, if you have verbal authorization from somebody to violate a regulation, I will have to charge the jury that an individual may not do that.

MR. CODDINGTON: Well, certainly I'm happy to brief that.

THE COURT: Brief it all you want, because I sweated blood over this issue, because this was really quite serious. This was the business of taking armaments from this country and swapping it over from Russia, all on the okay of D.I.A. and C.I.A., And I wouldn't let them put that defense before the jury, and the 2d. Circuit said I was right. I went through a tremendous amount of research and wrote an opinion on this, and it was published, United States -vs- Schwartz. You may not as an individual authorize somebody to do something against the regulation, whether you are high-ranking. I don't think the President may do it. I didn't have to decide.

THE COURT: In any event, nobody approved this in writing. So the whole defense is a non-entity. I know you don't want to get rid of it from your mind, but there it is. If you want to stop the trial and mandamus me to the Second Circuit and have your ears pinned back, fine. But that's it, that's the ruling, you've got to live with it. You've got to stop trying to sneak it in through the back door or I'm going to have to take appropriate action.

THE COURT: You might have some validity to it if--if there was any kind of an acknowledgment from Salazar that he--that he had any such conversation, but he emphatically denies it. Everybody says it is not within anybody's power to give it or--and the regulation itself says you've got to have any modification in writing. It just doesn't make any sense to me that anybody in his right mind would rely--would, in fact did rely on any such permission. It just didn't exist.

Wilfulness is a question of fact for the jury. A trial Judge cannot take the question from the jury and answer it himself by applying his own objective standard of wilfulness. We thus disagree with the Court of Appeals' requirement that a claimed good-faith belief must be objectively reasonable if it is to be considered as possibly negating the Government's evidence purporting to show a defendant's awareness of the legal duty at issue. Knowledge and belief are characteristically questions for the factfinder, in this case the jury. Characterizing a particular belief as not objectively reasonable transforms the inquiry into a legal one and would prevent the jury from considering it. It would of course be proper to exclude evidence having no relevance or probative value with respect to willfulness; but it is not contrary to common sense, let alone impossible, for a defendant to be ignorant of his duty based on an irrational belief that he has no duty, and forbidding the jury to consider evidence that might negate willfulness would raise a serious question under the Sixth Amendment's jury trial provision. My colleagues clearly err, therefore, in holding that "an absence of wilful misconduct--when based on a claim of a mistaken understanding of [FAA] regulations--must be supported by objectively reasonable evidence as to that mistaken understanding." Because these are the crucial issues in the instant case, the trial court should have followed a liberal policy in admitting evidence directed towards establishing the Captain's subjective state of mind. No evidence which bore even remotely on this issue should have been kept from the jury, unless it interjected tangential and confusing elements which clearly outweighed its relevancy.

We would be blinking reality if we did not hold that the district Judge's erroneous rulings were prejudicial. Indeed, as disclosed by the following excerpt from the argument on appeal, plaintiffs' counsel admitted as much:

JUDGE VAN GRAAFEILAND: Let me ask you this, Mr. Kreindler: If I read the record, I listen to your argument and I read the record, and I decide that Judge Platt said I'm not going to hear from Mr. Sonesen no matter what, would you concede that that is very prejudicial error in this case?

MR. KREINDLER: Under those circumstances, yes. But that's not what happened. That's--

JUDGE VAN GRAAFEILAND: I'm not asking you that. I'm asking you if I read this record and I decide that that is what happened--leave this offer of proof business out--if I decide that Judge Platt just simply said, I'm not going to hear Mr. Sonesen, that would be prejudicial error; wouldn't it, in this case?

MR. KREINDLER: Your Honor, even--

JUDGE VAN GRAAFEILAND: Counsel, wouldn't it be prejudicial error?

MR. KREINDLER: Of course, if the Judge were hearing--

JUDGE VAN GRAAFEILAND: Of course, it would. Then we have got the issue: did he refuse to hear him, or didn't he?

MR. KREINDLER: No.

JUDGE VAN GRAAFEILAND: All right, that's the issue. I'll read the record very carefully, Mr. Kreindler.

Even my colleagues concede that the district court erred in excluding evidence of British Airway regulations which, in the face of bombings by Irish terrorists organizations, permitted Pan Am and other carriers to x-ray unaccompanied baggage at Heathrow Airport. This proof, my colleagues recognize, "undercut[s] the allegation that [Pan Am] consciously or recklessly disregarded the probable consequences of its x-ray procedures" and "clearly was relevant." My colleagues continue, "[a] showing that Pan Am and Alert complied with British security directives--whether or not they violated the ACSSP-might have made it somewhat less likely to believe that they acted recklessly in adopting an x-ray-only approach to inspecting interline bags." I regret that in my colleagues' apparent eagerness to affirm, they hold this error to be harmless. It was not harmless. It went squarely to a crucial issue in the case, i.e., whether Pan Am knew that its use of x-ray screening probably would result in injury.

Evidence that, shortly after the Lockerbie accident the FAA amended its regulations so as to permit x-ray screening, also went squarely to the issue of whether Pan Am should have anticipated danger in its pre-amendment use of x-rays. The district court's refusal to permit the jury to receive this evidence exacerbated all of the court's similar rulings that pervaded the trial. In short, it was another indication that the district court misunderstood the law. The issue was not whether Pan Am violated the regulation; it was whether Pan Am wilfully used x-ray screening with knowledge that its use would probably result in injury or in reckless disregard of the probable consequences.

Conclusion

If all of the irrelevant and prejudicial evidence dealing with such matters as television commercials and the private lives of Pan Am employees, together with the colloquies of court and counsel arising out of the district court's "425" erroneous rulings, were eliminated from this case, it could be retried in several weeks. Particularly in view of the fact that the outcome in over two hundred cases hinges upon the judgment in the instant case, Justice demands that the matter be remanded so that it can be tried fairly.I Dissent.

[T]he evidence offered by Pan Am regarding its mistaken view of what was required by the ACSSP was inadmissible for the purposes of mounting a mistake of law defense. Notwithstanding the foregoing, appellants insist the oral waiver evidence was admissible on the question of their wilful misconduct, which is of course the ultimate issue in this Warsaw Convention case…. On Vinieris v. Byzantine Maritime Corp., 731 F.2d 1061 (2d Cir. 1984), we addressed the question of admissibility of evidence going to a defendant's state of mind in the context of a statute that required "conscious misconduct" be proven for a seaman to recover under the penalty provision in a wage-withholding statute. We held that "no evidence which bore even remotely on [state of mind] should have been kept from the jury, unless it interjected tangential and confusing elements which clearly outweighed its relevancy." Id. at 1064. This formulation is in some sense a restatement of the well-known balancing test contained in Rule 403 of the Federal Rules of Evidence.

Whether the problems to be anticipated by admission of the oral waiver evidence in the present case clearly outweighed the evidence's relevancy is a close question. Analysis of this issue cannot exist in a vacuum. Because the oral waiver evidence was so intertwined with the government authorization and mistake of law defenses, which as a matter of law were not available to defendants, we believe that admission of such evidence might well have been unnecessarily confusing and perhaps prejudicial so as to justify the trial court's refusal to allow its admission.

Nonetheless, even were it an abuse of discretion to deny admission of the oral waiver evidence on the foregoing grounds, we hold that such an error was harmless. An evidentiary ruling is harmless when we are fairly assured that it had no substantial effect on the jury's verdict. See Rea,958 F.2d at 1220. In the instant case, the record is replete with evidence that wholly undermines Pan Am's claim of good faith. The overwhelming evidence presented during the course of the three and one-half month trial established that Pan Am officials ignored repeated warnings and signals that its security measures were insufficient.

The scope and nature of this evidence needs to be set forth in some detail. We begin in 1983 when a Pan Am flight leaving Rome, Italy for New York was the target of a bomb planted in an unaccompanied interline suitcase. Disaster was averted only when Turkish authorities conducted a passenger/bag match that uncovered the suitcase. Pan Am thus knew of this type of sabotage and that physical matches of suitcases were successful in averting such a terrorist act.

In 1985 a bomb hidden inside a radio and packed in an unaccompanied interline bag exploded on an Air India 747 over the North Atlantic, killing all aboard. The dangers of a bomb hidden inside radios packed in interline bags were well known to Pan Am and the airline industry. These two incidents not only led to the adoption of ACSSP XV.C.1(a), but they conveyed clear warnings that what actually happened at Lockerbie was a distinct possibility.

In September 1986 Pan Am received a report from a group of Israeli security experts commissioned to review Pan Am security at various airports, including Heathrow and Frankfurt. The security experts concluded that "under the present security system, Pan Am is highly vulnerable to most forms of terrorist attack. The fact that no major disaster has occurred to date is merely providential." The report specifically cautioned Pan Am on the use of x-ray machines as substitutes for physical searches, and the dangers of interline unaccompanied bags.

In October 1988 Alert Manager for Germany Ulrich Weber wrote a memo to New York headquarters citing the need for more personnel to remedy Frankfurt's security shortcomings. Only minimum efforts were made to remedy them.

In July 1988 the FAA issued a Security Bulletin warning of the high threat of a terrorist retaliatory attack because of the downing of an Iranian Jetliner. In November 1988 Pan Am received an FAA Security Bulletin warning that a raid on a terrorist group had uncovered a bomb built into a Toshiba radio cassette player. (Toshiba Warning). The bulletin warned that the bomb was difficult to detect by the use of normal x-ray.

The most wilful disregard of passenger safety, bordering on the outrageous, was in December 1988 when Pan Am received an FAA Security Bulletin advising that the United States Embassy in Helsinki had received a telephone warning that a Pan Am flight from Frankfurt to London and on to New York would be bombed. (Helsinki Warning). The Helsinki warning came just 14 days before the instant tragedy and specifically referred to the Toshiba Warning. Despite these warnings, Pan Am failed to conduct searches of unaccompanied interline luggage, and instead inspected such bags only by x-ray. Pan Am did not even alert x-ray technicians to watch for Toshiba radios. It violated FAA regulations by failing to match the bags with particular tickets without advising the FAA in writing that interline bag match had been discontinued. And it violated other FAA regulations by failing to warn pilots about the unaccompanied bags on board for fear that the crews might become "jittery." Additionally, Pan Am did not replace several members of its security team who were woefully undertrained given their responsibility for thwarting terrorist attacks.

Moreover, the Helsinki Warning was deliberately placed under a pile of papers on the desk of the security officer who received the bulletin and was first discovered in the morning following the downing of Flight 103. There was also evidence that Weber, the security officer in charge, ordered the Pan Am employee who discovered the bulletin after the explosion to backdate the warning to give government investigators the impression that the warning was timely disseminated when received. The district court found that the backdating was evidence of consciousness of guilt on the part of Pan Am for its part in the wrongful causation of the crash.

This and other evidence overwhelmingly supported the jury's Conclusion that but for Pan Am's wholly inadequate terrorist prevention techniques and its deliberate indifference and overt acts of wilfulness, the bombing and the senseless loss of life would not have occurred. Even had Pan Am been permitted to present Sonesen's deposition testimony to the jury, the above recited proof, plus the additional fact that any waiver of FAA regulations had to be in writing, make it plain to us that it would not have affected the jury's finding that Pan Am was guilty of wilful misconduct. Its exclusion was therefore harmless error.Consequently, for all of the above reasons, the district court's refusal to permit the admission of Pan Am's oral waiver evidence -- on government authorization, mistake of law, and state of mind grounds -- does not constitute a sufficient basis for the granting of a new trial.

Various attempts by appellants to suggest other specific causation theories were then rebuffed by the trial court. Pan Am and Alert challenge the exclusion of the testimony of four defense witnesses: two offered as experts on terrorism, Noel Koch and Dr. Ariel Merari, and two offered as experts on terrorist bombings, Peter Gurney and John Horne of Scotland Yard. Pan Am also contends it was error to restrict its cross-examination of plaintiffs' experts, Billie Vincent and Rodney Wallis (the former Director of Security for the International Air Transport Association), with respect to other methods of bombing. The trial Judge based his rulings largely on the fact that he found appellants had offered nothing to show there was any other specific bombing theory.

The trial court did not abuse its discretion in excluding the testimony of defense experts Koch and Merari because their Conclusions as to more likely explanations for the bombing were speculative. Any testimony as to some other particular method of bombing -- without any foundation that such method might explain the Flight 103 bombing -- was clearly conjectural.

It was also not error to decline to receive the testimony of terrorist bombings experts Peter Gurney and John Horne. Their testimony as to the importance of x-rays would have been cumulative since similar testimony was adduced from other witnesses. Additionally, these witnesses' expertise as to x-rays was questionable. Both witnesses were explosives officers with Scotland Yard who specialized in street bombings. Neither had experience in aviation bombings or security. Moreover, neither had any background or knowledge concerning the Flight 103 bombing itself; the trial court found this rendered their proposed testimony unhelpful and largely irrelevant. This ruling was well within the trial court's Fed. R. Evid. 702 discretion.

Appellants admit that at trial they sought to argue that the method of bombing was not established and concede they were unable to suggest a specific alternate theory. They vigorously argued that the method of bombing was unclear, and accomplished this through extensive cross-examination of plaintiffs' experts. Pan Am and Alert also were not deterred from attacking plaintiffs' weaker theory that widespread misconduct on defendants part more likely than not caused the bomb to be loaded on Flight 103. In sum, Pan Am and Alert exercised the ample opportunities given them to undermine plaintiffs' causation theory. Thus, the rulings limiting cross-examination and expert testimony were unremarkable and without error.

Excerpts from the September 12th Dissenting Opinion

I am convinced that Pan Am did not receive a fair trial, I would be shirking my duties as a Judge if I did not say so. Before undertaking the unpleasant task of discussing where I believe the district court erred, I find it necessary to undertake the even more unpleasant task of commenting briefly upon my colleagues' amended opinion, a substantial portion of which is devoted to a rebuttal of arguments that Pan Am never made. As will be discussed below, the district court clearly erred in rejecting all evidence offered by Pan Am in support of its contention that it received and relied upon an oral interpretation from Salazar. Although my colleagues devote seventeen pages of their amended opinion to a Discussion of the "oral waiver," "government authorization," and "mistake of law" defenses, none of these defenses was asserted by Pan Am or is relevant to the pertinent issue herein.

Because, as in my Dissent to the original majority opinion, I deem it necessary in the interest of uncontrovertible accuracy to quote at length from the record, I will not prolong this opinion by an extended counterstatement of the facts. Indeed, what is perhaps the most crucial fact has been established by stipulation: [Pan Am] insisted that a bomb contained in a suitcase would have been visible on x-ray. In fact, the parties stipulated to that fact. Majority opinion at 31. It is worth noting, however, how this stipulation came into being. After Pan Am was satisfied that it could use x-ray examination of luggage, it purchased for the Frankfurt airport the most expensive up-to-date x-ray machine on the market, the Astrophysics Linescan X-ray Screening System.

Q. Does your company make a larger machine than this?

A. This is the largest machine we make.

Q. Does your company make a more expensive machine that this?

A. No, sir.

Q. At the time it was sold, was there a newer or more advanced state of the art machine than this?

A. No, sir.

(Testimony of Derek Kemp, an Astrophysics Company official).

Pan Am wanted the jury to see the machine and how it operated, and for this purpose it had the machine transported to the courthouse. For obvious reasons, plaintiffs' counsel did not want the jury to have the benefit of this first-hand observation, and he stipulated what an examination of the machine would have shown. Although Pan Am should not have been required to accept this stipulation in lieu of actual observation, see United States v. Gantzer,810 F.2d 349, 351 (2d Cir. 1987), the district court gave it no choice. At the district court's direction, the machine sat in the basement of the courthouse, alone and unobserved. The fact that plaintiffs' counsel objected to a jury inspection is evidence in and of itself that the district court erred in not permitting it.

My colleagues' Discussion of the Helsinki warning is in the nature of a half-truth that calls for exposition. Pan Am's response to this warning, as described in the testimony of Wolfgang Schwab, a Pan Am supervisor at Frankfurt, was quite different than what my colleagues would have us believe:

Q. Prior to the Lockerbie disaster, had it been brought to your attention that there was a warning received by the United States Embassy in Helsinki to the effect that a Pan Am flight to the United States would be bombed?

A. Yes.

Q. Tell us, please, when and how that was brought to your attention?

A. I am not able to give you the exact point in time but it was certainly before Lockerbie, when we were told that a female Finnish passenger would try to smuggle a bomb aboard.

Q. Were you warned to pay particular attention to all female passengers or only Finnish female passengers?

A. Particularly to a female Finnish passenger.

Q. Did you ever issue any instructions to look out for Finnish women or to pay particular attention to Finnish women?

A. Yes, I did.

Q. When was that?

A. Before Lockerbie.

Q. What instructions or suggestions did you issue?

A. Now, I told the screeners and the staff that they were to pay particular attention to female Finnish passengers or woman coming from that region up there and I told them that one person would try to smuggle a bomb aboard a plane.

Q. Do you remember if you did it personally or if you asked someone else to do it?

A. I did it personally.

Because the house of cards to the effect that the bomb entered the stream of commerce in Malta was constructed entirely of opinion testimony introduced by plaintiffs, simple Justice required that defendant's experts be given an opportunity to demolish it. Obviously any testimony concerning how the bomb got on the plane had to be conjectural. However, the burden of proof on this issue was on the plaintiffs, not the defendant. Pan Am nevertheless offered expert testimony to challenge plaintiffs' contentions, which the district court refused to receive.

If Pan Am's experts were correct in opining that no expert could testify with any degree of reasonable certainty how the bomb got on the plane, the district court's refusal to permit Pan Am's experts to so testify meant that the district court deprived Pan Am of all means of contesting the testimony of plaintiffs' experts on this important issue. The constitutional implications of such a result are obvious. "The admission of a report containing 'Conclusions' is subject to the ultimate safeguard -- the opponent's right to present evidence tending to contradict or diminish the weight of those Conclusions." Denial of this "ultimate safeguard" in the instant case was prejudicial reversible error.

A carrier covered by the Warsaw Convention cannot limit its liability to $75,000 if a plaintiff's damages were caused by the carrier's "wilful misconduct." Wilfulness as thus used involves the issue of intent, not an intent to violate an FAA regulation, but the intent to perform an act with knowledge that it probably will result in injury and with disregard of that probable consequence. Because the issue of intent, or state of mind, is crucial in any determination of wilful misconduct, the following generalizations concerning proof of intent will be helpful in the Discussion that follows. A court has no right to reject testimony dealing with a person's state of mind because it deems the testimony incredible or lacking in persuasive force. The pertinence of the above legal generalizations in the instant case is readily apparent. It cannot be gainsaid, for example, that resolution of the issue of wilfulness involves consideration by the jury of the mental processes of Pan Am officials. As stated above, the state of mind of these officials was a fact question to be proved the same as any other fact, and the district Judge had no right to reject testimony dealing with this fact because he deemed it incredible or unpersuasive. Any evidence which has a material bearing upon the intent with which a person acted and which fairly tends to a disclosure thereof, or which is explanatory of the intent or purpose with which an act was done, or is to be done, is admissible. The record is clear that both the district court and plaintiffs' counsel had ample notice of Pan Am's intention to offer evidence of Sonesen's conversation with Salazar concerning the propriety of using x-ray screening.

The district Judge even precluded Pan Am from showing that FAA officials inspected Pan Am's operations both before and after the bombing and made no complaints of irregularities. The district Judge's ruling on this issue is illustrative of his mind-set.

THE COURT: I'm satisfied, Mr. Shaughnessy, this is another back-door method of getting Mr. Sonesen's unilateral interpretation of his authority to bury the FAA regulations before this jury. I don't like you doing it. I think the next time you attempt to do it you should alert the Court that this is what you're attempting to do. I have ruled upon it. Had you gotten this before the jury before alerting me and one had been asleep, I probably would have had to declare a mistrial. We're six weeks into this trial. The law has been stated by me to be that based upon two Second Circuit decisions, both of which went to the Supreme Court and certiorari was denied, you have promised me that you were going to show me the law was otherwise. You haven't. You may not do this.

MR. SHAUGHNESSY: All I wanted was to ask the witness –

THE COURT: You attempted to get this FAA report in before this jury with, knowing that this man was operating under this assumption, that what they were doing was correct and was in direct violation of the FAA regulations, and he was doing it on the basis of this verbal authorization of Mr. Sonesen who said he had reached him. According to FAA officials, testified he didn't have, and the regulations themselves say he couldn't have, and you can't do it. You do it again and I'm going to have to take appropriate action.

A threat of contempt for attempting to introduce evidence that FAA officials who, after personally inspecting Pan Am's operations found no fault with them, is pretty strong medicine. However, it illustrates once again that the district Judge was fully aware of what Sonesen's testimony would have been.

Even my colleagues concede that the district court erred in excluding evidence of British Airway regulations which, in the face of bombings by Irish terrorist organizations, permitted Pan Am and other carriers to x-ray unaccompanied baggage at Heathrow Airport. I regret that in my colleagues' apparent eagerness to affirm, they hold this error to be harmless. It was not harmless. It went squarely to a crucial issue in the case, i.e., whether Pan Am knew that its use of x-ray screening probably would result in injury.

Evidence that, shortly after the Lockerbie accident the FAA amended its regulations so as to clarify the permissible use of x-ray screening, also went squarely to the issue of whether Pan Am should have anticipated danger in its pre-amendment use of x-rays. The district court's refusal to permit the jury to receive this evidence exacerbated all of the court's similar rulings that pervaded the trial. In short, it was another indication that the district court misunderstood the law. The issue was not whether Pan Am violated the regulation; it was whether Pan Am used x-ray screening with knowledge that its use would probably result in injury or in reckless disregard of the probable consequences.

Boy Scout executive Lester Knox Coleman III in 1988 on the eve of Operation Shakespeare, his last mission as an agent of the United States' Defense Intelligence Agency.

The beachfront villa in Beirut where Coleman lived in 1985 during his first DIA undercover assignment. Posing as Middle East correspondent for the Christian Broadcasting Network, he was on a mission to serve as linkman for the DIA's Lebanese spy network and to frustrate an Iran-Contra arms deal engineered by Oliver North.

The identity badge and pass issued to Coleman in 1987 when he taught a course in audio and video surveillance at the National Intelligence Academy in Fort Lauderdale, Florida.

Coleman's DIA spy kit. Consisting of off-the-shelf commercial equipment that anyone might buy, it included the Sony video camera that was still signed out to him at the time of his arrest by the FBI in 1990 on a trumped-up passport charge.

Two of Coleman's DIA-issue tape recorders and 'bugs'. The Sony voice-activated machine was used to record the conversation with a DEA attache Micheal Hurley seven months before Lockerbie in which Coleman warned him of the 'disaster waiting to happen'.

The identity papers seized by the FBI at the time of Coleman's arrest in May 1990. Most of them are in the name of Thomas Leavy, a cover identity originally provided by the CIA in 1982 and reinforced by the DIA in 1990 for Operation Shakespeare.The Thomas Leavy birth certificate issued to Coleman in 1982 by the CIA. In 1990, he was charged with applying for a copy of a birth certificate in that name and using it to make a fraudulent passport application. The FBI has yet to explain why he would have needed another copy when he already had one.

A rare moment of relaxation for Lester and Mary-Claude Coleman in the Bakamo-Galaxen refugee camp after they sought political asylum in Sweden in 1991.

Front-pages news, 19 October 1992. Eighteen months after the Colemans' arrival iDAG, Sweden's national afternoon newspaper, tells the story of the first American citizens to seek asylum in that country since the Vietnam war.

Reference is made to your communication dated 6 May, 1992 and a telephone call between Mr. Anders Claesson of your office and myself.

Enclosed per a request of Mr. Claesson is a report detailing the background of Lester Knox Coleman.

As Coleman is a fugitive, we would greatly appreciate any information you may be able to provide on his current status in Sweden and the possibility Swedish law would allow for his deportation to the United States.

As always, your assistance is greatly appreciated.

Very truly yours,

Susan A. SprengelAssistant Legal Attache

For: R. John Theriault, Jr.Legal Attache

Smoking gun I: Washington tries to persuade Stockholm to deport Coleman to the United States.

U.S. Department of JusticeFederal Bureau of Investigation

Chicago, Illinois 60604March 30, 1992

LESTER KNOX COLEMAN, III,aka Thomas Leavy;PASSPORT VIOLATION

Chicago

Investigative Summary prepared: March 30, 1992

Basis for Investigation:

This investigation was instituted on February 7, 1990, when New London, Connecticut Resident Agency, New Haven Division, reported they had been notified by the New London Bureau of Vital Statistics that a person identifying himself as THOMAS LEAVY, had requested a copy of his birth certificate. LEAVY's Date of Birth (DOB) was listed July 4, 1948, his parents were listed as JOHN and MARY LEAVY and THOMAS LEAVY's address was listed as 416 County Line Road, Barrington, Illinois. A computer check of the Bureau of Vital Statistics Records revealed that the real THOMAS LEAVY had died in New London, Connecticut, two days after his 1948 birth.

On April 6, 1990, RICHARD BECKMAN, Chicago Passport Office, 230 South Dearborn Street, Chicago, advised the FEDERAL BUREAU OF INVESTIGATION (FBI) Chicago, that he had a possible passport violation. An application, submitted by a THOMAS LEAVY on March 26, 1990 at the Arlington Heights Post Office, had a number of indicators that pointed to a violation.

The first indication was the birth certificate for the dead baby. Other indicators were recently issued driver's license and Social Security Account Numbers. Also the home and work addresses on the applications came back to two separate mail drop locations. The home contact telephone number on the application is not a north suburban telephone exchange. The listing is for a cellular telephone.

Another indicator was that the contact person listed on the application was a relative. The contact is LESTRE COLMAN, 415 West County Line Road, Barrington, Illinois, telephone number (708) 381-1056, listed as a brother-in-law. The telephone number, 381-1056, comes back to ARTHUR MCINTOSH, 416 West County Line Road, Barrington.

Investigation to date:

Investigation at Chicago revealed that the owner of one mail drop and the Office Manager of the second, identified the photo from the passport application as LESTER KNOX COLEMAN. The owner of a printing shop advised that LESTER COLEMAN had ordered two sets of business cards. One was in the name LESTER COLEMAN, the other THOMAS LEAVY.

Numerous checks at the address listed for emergency contact, which was the same address the birth certificate was to be mailed to, failed to reveal any tenants. On April 16, 1990, the next door neighbor was approached for information. The neighbor advised that LESTER COLEMAN was house sitting for the owner of the home, ARTHUR T. MCINTOSH. The neighbor identified the photo from the application as LESTER COLEMAN. She advised that the COLEMAN family left on April 7, 1990 for California. COLEMAN was to go to Japan and on his return flight stop in Hawaii to meet the rest of the family. The neighbor stated that on April 11, 1990, KOLDON MOVING AND STORAGE, 410 Telser Road, Lake Zurich, Illinois arrived to move COLEMAN's belongings to storage.

On April 17, 1990, Magistrate W. THOMAS ROSEMOND, Jr., Northern District of Illinois, issued a warrant for LESTER KNOX COLEMAN, III. This warrant was for willfully and knowingly making a false statement in an application for a passport, in violation of Title 18, United States Code, Section 1542.

On April 25, 1990, KOLDEN MOVING AND STORING advised that COLEMAN can be reached at telephone number (205) 540-2448. The telephone number was sent to the FBI office in Mobile, Alabama. On May 1, 1990 LESTER KNOX COLEMAN, III, was arrested without incident at Townhouse Residence SE-14, 1616 Fort Morgan Road, Fort Morgan, Alabama.

After his arrest COLEMAN claimed to have petitioned to have his name changed to THOMAS LEAVY. A check with Jefferson County Probate Records Department, Birmingham, Alabama, revealed that COLEMAN did not petition the court until April 12, 1990 to change his name.

Smoking gun II: he FBI's so-called 'Investigative Summary' which accompanied the letter to Stockholm, setting out the basis for the passport charge.

To Whom it May Concern:

I am a journalist working on a book project which indirectly involves American foreign policy.

On January 18th, 1993, I called the Records Office in New London, Connecticut, and asked to speak to the Clerk, Gloria Hatfield. I asked Ms. Hatfield if the New London records showed that a Thomas Leavy had died on the 6th of July, 1948. Ms. Hatfield examined her files and informed me that she had looked under 1946, '47, '48 and '49, but could find no record of such a person. When I asked if she had information showing the birth of a Thomas Leavy as being July 4, 1948, she replied that obtaining a birth record required the presentation of documents, which I did not have.

Smoking gun III: The sworn statement of Diana Holdsworth contradicting the FBI's assertion that the 'real' Thomas Leavy died on 6 July 1948.

Fugitive warrant ploy: Ordered by the Federal court to report to Dr. Hakan Hallberg in Trollhattan for a medication examination, Coleman discovers that Dr. Hallberg knows nothing about the arrangement. Although Coleman submits a written statement from the doctor to that effect, a bench warrant is issued for Coleman's arrest on grounds of 'failure to appear.'

1. The information below was gathered through interview of the defendant and through contact with DEA Headquarters, NBC News, and the subject's attorney.

I. Lester Coleman was born in Pensacola, FL on September 25, 1943.

II. Although Mr. Coleman's employment history sounds quite improbable, information he gave to the Pretrial Services Officer has proven to be true. Coleman is a free-lance journalist, specializing in the Middle East, who has also worked as an undercover investigator for the Drug Enforcement Administration of the United States. NBC News Foreign Correspondent Brian Ross contacted this office on May 3, 1990 to verify Coleman's relationship with NBC News. He also indicated Coleman has worked with other news agencies, as well. Ross indicated Coleman has contributed stories regarding Middle East terrorism and drug trafficking to NBC News numerous times throughout the 1980's. They have interviewed him on the air, on NBC nightly news, as an expert in terrorism and drug production in the Middle East. Ross also verified that Coleman has testified before Senate committees on these same subjects.

Ray Tripiccio, an agent with DEA in Washington, D.C., verifies that Coleman has formerly worked in a relationship with the Drug Enforcement Administration. The only information he could give on this secret activity is that Coleman was deactivated as a contract consultant as of 6-24-88.

Joseph Boohaker of the Counsel of Lebanese-American Organizations, verifies that Coleman has been employed with that group in the past, for about a year. His contract ended 3-31-90, and it appears likely that Coleman has not had a regular pay check, since that time. Coleman indicates that he is currently working on a book, and that he was attempting to make arrangements to return to the Middle East, in order to do more research. (It is noted that Coleman has gone to Jefferson County Probate Court in Birmingham, to have his name legally changed to, "Thomas Leavy.") Joseph Boohaker, the subject's attorney, verifies that this was accomplished sometime in April. (The present charge from Chicago apparently pre-dates the legal name change.) Coleman states that he needed a passport in a different name, because his name is known to drug traffickers in the Middle East.

IV. I have no information indicating that Mr. Coleman has ever been arrested.Coleman's Pretrial Services Report, in which the Drug Enforcement Administration describes him, correctly, as a 'contract consultant' engaged in 'secret activity.'

UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF ILLINOISEASTERN DIVISION

UNITED STATES OF AMERICA,Plaintiff,vs.LES COLEMAN,Defendant.

90 CR 365

MOTION FOR PRODUCTION OF DOCUMENTSUNDER RULE 16(a)(1)(C)

Now comes the defendant Les Coleman by his undersigned counsel and respectfully requests the following government documents which are material to the preparation of defendant's defense:

1. All records by the Drug Enforcement Administration (DEA), the Defense Intelligence Agency (DIA) and any other United States Intelligence or Law Enforcement Agency reflecting their employment and/or working relationship with the defendant, Les Coleman, including all DEA records referring to DEA Informant ID #SX9860002, all records of DIA MC 10 pertaining to the defendant, as well as all files from the CIA and DEA related to an operation named "COREA" from December 1987 to January 1989.

Included in the document request are all documents or other writings reflecting payment, work assignments, evaluations, travel authorizations, equipment requisitions or any other reference to a Les Coleman, Benjamin B, Thomas Leavy, Jr., Stevens Mantra Corp., Middle East Television, Condor Television Ltd., AMA Industries, and Wildwood Video. All of these names are code names and front companies under which defendant worked for the government.

In support of this request defendant states that his defense to the charge in making a false statement in application for a passport, is that he was working for the government at the time he made such false statements and that the alleged false birth certificate upon which the false statement is based was supplied to him by the government and was used to obtain a passport to conduct a secret intelligence operation for the government. Consequently, all documents showing the defendants working relationship with government intelligence agencies would be corroborative of his claim and material and necessary for his defense.

Defending himself against the passport charge, Coleman seeks a court order on 30 August 1990, requiring the DEA, the DIA and other agencies to produce his government employment records. Washington refused to comply on grounds of 'national security.'

1. I am currently self-employed as a freelance writer, author and security consultant. I am a United States citizen and am temporarily residing outside of the United States.

2. I am fully familiar with the facts in this affidavit, and all of the statements contained in this affidavit are made on my personal knowledge except as otherwise stated. I make this affidavit in opposition to the motion of third-party defendant, United States of America (the "Government"), for an order dismissing the claims of the third-party plaintiffs against the Government or, alternatively, for an order granting the Government summary judgment on those claims.

PERSONAL BACKGROUND

3. I was raised in the Middle East where I lived in Iran, Libya and Saudi Arabia, and I speak Arabic in three ...

TRANSCRIPT TELEPHONE CONVERSATION

MAY 1 1988 TIME: 10:10 a.m. CYPRUS LOCAL

CALL MADE FROM EURAME TRADING COMPANY OFFICE NICOSIA

TO DEA COUNTRY OFFICE, AMERICAN EMBASSY NICOSIA

PRIVATE LINE, TELEPHONE 02-465-182

LC=LESTER COLEMAN MH=MICHEAL HURLEY DEA ATTACHE

LC: HELL MIKE?

MH: YEA

LC: THE SITUATION HERE IS GETTING OUT OF HAND ..

MH: WHAT DO YOU MEAN?

LC: WE'VE GOT PEOPLE COMING IN AND OUT OF HERE ... LIKE A TRAIN STATION ... PINKO'S PEOPLE BRINGING IN ALL SORTS .. I DON'T KNOW WHO THEY ARE ... LEBANESE ... WITH NAMES WE HAVE IN THE FILES ... YOU KNOW WHAT I MEAN? WE HAD AN AGREEMENT. IT REALLY WORRIES ME ... BEING EXPOSED LIKE THIS ...

MH: LET ME WORRY ABOUT THAT ... YOU JUST HELP IBRAHIM GET THOSE REPORTS OUT ... I'LL DEAL WITH THE CYPRIOTS ... WHOSE OVER THERE NOW?

LC: JUST ME AND IBRAHIM .. BITCHING AND COMPLAINING AS USUAL ... SAYS HE CAN'T DO THIS ANYMORE ... WANTS TO QUIT ... HE'S DRIVING ME NUTS. GOD DAMN MIKE THIS IS NOT WHY I CAME BACK HERE.

MH: YOU'LL JUST HAVE TO DO THE BEST YOU CAN.

***

"LC:" LEAVE? THAT'S ALOT OF CRAP MIKE ... LOOK I'M NOT ONE OF YOUR LEBANESE OR CYPRIOTS OR IRAQI CI'S ... YOU REQUESTED MY SERVICES, REMEMBER? AND I WAS TOLD IF I DIDN'T LIKE IT I COULD PULL OUT ANYTIME. YOU TALK TO WHO EVER YOU WENT TO TO GET ME INVOLVED IN THIS CANDY ASSED OPERATION ... TELL THEM, AND I'LL TELL THEM WHEN I GET BACK TO THE STATES ... I'M PULLING. THIS IS A DISASTER WAITING TO HAPPEN ... EVEN YOUR OWN PEOPLE THINK THIS IS BULL SHIT.

Coleman's affidavit in Pan Am vs USA, to which was appended a transcript of his conversation with Micheal T. Hurley in which, seven months before Lockerbie, he warned the DEA attache about 'a disaster waiting to happen.'

I, Terry E. Bathen, Lieutenant Colonel, United States Army, Assistant General Counsel, Defense Intelligence Agency, do hereby declare the following to be true and correct:

5. My review of Department of Defense HUMINT records reveals that Mr. Coleman was formerly associated with a Department of Defense intelligence activity. On or about October 25, 1985, Coleman contacted Defense Intelligence Agency personnel by telephone and volunteered to provide information concerning the Middle East. Mr. Coleman's offer to provide video tapes associated with his travels in that part of the world was favorably evaluated, and he became affiliated with a classified Department of Defense Intelligence activity during December 1986.

I certify under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief.

Executed this 29th day of May 1991.Limited hang-out I: The declaration of DIA counsel in Pan Am vs USA which unexpectedly admits that Coleman worked for the Defense Intelligence Agency, although it plays down the extent and nature of his employment as a HUMINT agent.

1. I am a Special Agent (criminal investigator) of the Drug Enforcement Administration (DEA), a component of the United States Department of Justice. I have been employed by DEA and its predecessor agencies since September 1968.

2. I submit this declaration in connection with the allegations against the United States Drug Enforcement Administration regarding the terrorist bombing of Pan Am Flight 103 over Lockerbie, Scotland, on December 21, 1988.

6. Coleman was established as a DEA-cooperating individual ("CI") on January 31, 1986, partially because of his technical capabilities and he said that he could establish a CI network in Lebanon. He was to recruit sub-sources to collect data regarding opium production in Lebanon. The data would enable DEA to develop strategic information on opium production in that region, including crop estimates, crop eradication, and major trafficking routes.

I hereby declare under penalty of perjury that the foregoing is true and correct.

Signed this 31st day of May, 1991.

MICHEAL T. HURLEYSpecial AgentDrug Enforcement Administration

Limited hang-out II: The declaration of Micheal Hurley in Pan Am vs USA in which he concedes that Coleman worked for the DEA in Cyprus, while playing down the nature of his assignment, and from which it is clear that Coleman was working for the Defense Intelligence Agency at the same time.

REDACTED VERSION

UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

Docket Nos. 92-9251, 92-9253 and 92-9255

IN RE: AIR DISASTER AT LOCKERBIE, SCOTLAND ON DECEMBER 21, 1988

JUDITH A. PAGNUCCO, individually and as Executrix of the Estate of Robert I. Pagnucco, deceased; MOLENA A. PORTER, Individually and as Administratrix of the Estate of Walter L. Porter, deceased; and DONA BARDELLI BAINBRIDGE, Individually and as Administratrix of the Estate of Harry M. Bainbridge,

Plaintiffs-Appellees,

v.

PAN AMERICAN WORLD AIRWAYS, INC., and ALERT MANAGEMENT SYSTEMS, INC.,

Defendants-Appellants.

On Appeals from the United States District Court for the Eastern District of New York

BRIEF FOR APPELLANTS PAN AMERICAN WORLD AIRWAYS, INC. AND ALERT MANAGEMENT SYSTEMS, INC.

Attorneys for Pan American World Airways, Inc. and Alert Management Systems, Inc.

Under Seal Version Dated: January 28, 1993Redacted Version dated: February 9, 1993

2. Defendants' Contention: The Method of Bombing Was Not Established. Defendants contended that it could not be determined from the evidence developed by the parties how the terrorists had planted the bomb on Flight 103. [6] Defendants were precluded from presenting the opinions of three experts (Airel Merari, Noel Koch, and Peter Gurney) [7] that the plaintiffs' theory as to how the bomb got on board was implausible and the evidence was insufficient to permit an expert to conclude that the bomb bag had been transferred in Frankfurt from Air Malta (e.g., J.A. 3465-68). In consequence, the jury heard only one expert for the defense (Dr. Lee Grodzins), and his testimony, as truncated by another ruling (see pp. 8-9 below), related to technical aspects of x-ray that were not in dispute by the parties (Tr. 5728-57).

Defendants were permitted to adduce testimony and records from Air Malta to show that no unaccompanied bag had been loaded onto Flight KM 180. [8] Plaintiffs' supposedly contradictory baggage records from varying sources in the FAG, defendants contended,

_______________

6. In a series of discovery rulings, defendants were prevented from obtaining discovery from the United States as to information that it might have regarding how the bombing was committed.

8. On Air Malta, the head loader must physically count the number of bags loaded in a plane's cargo hold to ensure that it equals the number on the baggage manifest (J.A. 3358 (Agius)). Moreover, no baggage of any kind from Flight KM 180 had been designated on the passenger transfer message (J.A. 1151) for transfer to Pan Am Flight 103 (J.A. 3367 (Borg)).

Extracts from Pan Am's appeal brief against the finding 'wilful misconduct' by a New York jury in the 1992 compensation suit brought by the families of the victims of the Lockerbie disaster.

contained so many demonstrable errors and omissions that no reliable conclusion could be based on them (J.A. 3603-12).

Defendants also adduced testimony that plaintiffs' theory of the bombing (the "Air Malta theory") was wrong because a bag containing a radio-cassette player had not been seen by the operator who x-rayed the interline bags that were loaded on to Pan Am Flight 103 in Frankfurt. Kurt Maier, who performed that inspection on December 21, 1988, testified that his duty report (J.A. 1099-1100) showed that he had x-rayed 13 bags for Flight 103, that he had been told to call a supervisor if he saw a radio inside any bag, and that none of the 13 bags x-rayed for Flight 103 contained a radio-cassette player (J.A. 3382-83, 3388-89, 3392-93). [9] Plaintiffs contended that Mr. Maier had not been properly trained as an x-ray operator and that he had not been wearing his eyeglasses (J.A. 2967 (Vincent)). Mr. Maier rejoined that his eyeglasses were only reading glasses that he did not need or use to perform his job (J.A. 3379-80).

Pan Am was precluded from presenting a demonstration of the x-ray equipment that would have supported Mr. Maier's testimony and would have shown the freeze-frame image produced on the monitor by a Toshiba radio-cassette player inside a Samsonite suitcase. The demonstration would have been presented by Dr. Lee Grodzins of M.I.T. The court ruled that the demonstration was irrelevant on the ground that plaintiffs, in effect, stipulated that radio-cassette players would be visible on the x-ray's monitor (J.A. ____); even though plaintiffs contended that Maier himself had been incapable of detecting such a radio.

Twelve of the 13 bags x-rayed by Maier for Flight 103 could be traced to passengers. Plaintiffs asked the jury to infer that the thirteenth bag was the alleged unaccompanied bomb bag from Air Malta. Defendants introduced evidence that the thirteenth bag was not the bomb bag, but rather was the unaccompanied "rush-tag" bag [10] of a Pan Am pilot, Captain Hubbar, who had sent two bags home, one of which was found at Lockerbie. [11]

B. The Parties' Contentions On Wilful Misconduct Relating to Plaintiffs' Air Malta Theory

1. The Alleged Violation of the ACSSP. Plaintiffs contended that Pan Am's x-ray procedure violated the aviation security requirements contained in the FAA's Air Carrier Standard Security Program ("ACSSP"). At the time of the Lockerbie disaster, ACSSP § XV.C.1(a) required that carriers at "extraordinary security" airports, such as Frankfurt, Heathrow, and other major European airports:

_______________

9. Maier was intensely cross-examined on, among other subjects, earlier deposition testimony that appeared to say that he stopped bags with radio-cassette players only if they appeared "suspicious." Maier explained that he would have stopped any radio-cassette player as being suspicious (J.A. 3394-96, 3408-09). Some of the difficulties with Maier's deposition appear to have been caused by the poor quality of the translation between English and German. (Maier does not speak English.) See, e.g., J.A. 3411 (in-court translator notes video deposition translation as "poor German, and ambiguous").

10. A "rush-tag bag" is a bag that has become separated from its owner/passenger. This is a common, some would say routine, occurrence on every airline. The general practice of the airlines is to specially ticket the bags ("rug-tag") and send them on their way. At Frankfurt, Pan Am x-rayed such bags before carrying them. See note 11 infra.

11. Captain Hubbard tagged two bags for carriage from Berlin to his home in SEattle, and then he piloted an aircraft to Karachi (Tr. 5420-43). One of his bags arrived at Seattle; the other was found at Lockerbie. Pan Am introduced evidence to show that because it required rush-tag bags to be x-rayed, one could infer that the Hubbard bag found at Lockerbie had been x-rayed by Maier before being placed on board Flight 103. (J.A. 1120-23; Tr. 5241 (Wunderlich).) Plaintiffs contended either that Hubbard's bag was put on Flight 103 in London (J.A. 762 (memo. of Jones)) or that it was not x-rayed in Frankfurt (Tr. 5263-66 (Wunderlich)).

SUBCOMMITTEE STAFF REPORT

Syria, President Bush and Drugs -- the Administration's Next Iraqgate --

November 23, 1992 [1]

Chairman Charles E. Schumer of the House Judiciary Committee's Subcommittee on Crime and Criminal Justice directed the Subcommittee majority staff to prepare this report. This report has not been reviewed or approved by other Members of the Subcommittee.

... Syrian Government involvement and the ____ some military units or Syrian officials, U.S. Government officials publicly claim that they are not in a position to substantiate such charges. However, Subcommittee staff spoke with former government officials who confirmed the existence of satellite photos showing Syrian military units, including tanks, artillery, and infantry encampments, strategically placed in, and adjacent to, recognized fields and known heroin laboratories.

Another source with intimate knowledge of the U.S. Government's files on Lebanese drug traffickers informed Subcommittee staff that the U.S. Government now possesses extensive intelligence information implicating many Syrian Government officials in the Lebanese drug trade. Much of this information is raw intelligence in the form of reports from confidential informants, intercepted wire and telephone communications, and other intelligence information received from foreign governments.

1. Monser al-Kassar -- "The Drug Prince of Marbella" and "The Godfather of Terrorists"

To better understand why the U.S. Government is apparently hesitant to act on such information, consider our Government's response, or lack thereof, to the infamous Monser al-Kassar.

The al-Kassar family has been part of the present Damascus regime since Hafez Assad took power in 1970. Monser's father, Mohammad al-Kassar, served in the Syrian diplomatic corps. The al-Kassars have been characterized as "the largest drug and arms dealing family in Syria."

Extracts from a congressional report prepared by the House Judiciary Committee's Subcommittee on Crime and Criminal Justice documenting Syria's involvement in Lebanese narcotics trafficking.